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DISTRICT:
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL
PRADESH)
(EXTRA ORDINARY CIVIL JURISDICTION)
WRIT PETITION (C) NO. /2018
To
The Hon’ble Mr. Justice Ajit Singh, B.Sc., LL.B, the Chief Justice of the Hon’ble
Gauhati High Court and His Lordship’s other companion Justices of the said
Hon’ble Court.
IN THE MATTER OF :-
An application under Article 226 of the Constitution of India for issuance
of a writ in the nature of Certiorari and/or Mandamus and /or any other
appropriate Writ, Order or Direction of like nature.
-AND-
IN THE MATTER OF :-
Violation and Infringement of the Fundamental and other legal rights
guaranteed under Part – III of the Constitution of India.
-AND-
IN THE MATTER OF :-
GSTN Portal not allowing to update digital signature of the new Director
to be replaced by the deceased Director, System is illegally accepting
digital signature of only the deceased authorised Director.
IN THE MATTER OF :-
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GSTN Portal not allowing to amend the registration certificate on
account of death of one of the Directors and inclusion of new Director in
place thereof due to non-acceptance of digital signature of new Director
by the portal.
-AND-
IN THE MATTER OF:-
Not making available the filing of monthly returns (GSTR-1) as well as
Transitional returns/forms on account of non-acceptance of the digital
signature of the new Director.
-AND-
IN THE MATTER OF:-
Closure of GSTN Portal to accept returns for prior period calling for
penalty, late fees and loss of Input Tax Credit for no fault on the part of
petitioner.
-AND-
IN THE MATTER OF:
M/s SRKM Steel Pvt. Ltd., A Private Limited Company incorporated under
the provisions of the Companies Act, 1956 and having its registered
office at C/o Khetawat Industries, Lokhra Road, Sawkuchi Post Office,
Guwahati- 781034 Kamrup (M), Assam.
......... Petitioner
-Versus-
1. The State of Assam,
represented by the Commissioner & Secretary to the Government of
Assam, Ministry of Finance(Taxation) Department, Block- F, Dispur ,
Guwahati-6, Assam.
2. Union of India,
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represented by the Commissioner & Secretary to the Government of
India, Ministry of Finance(Taxation) North Block, New Delhi.
3. Commissioner of State Taxes,
Guwahati, Assam.
4. Commissioner Central Goods & Service Tax,
Bhangagarh, Guwahati, Assam.
5. Superintendent of Taxes,
Unit- D, Guwahati, Assam
......... Respondents
The humble petition of the petitioner above named.
MOST RESPECTFULLY SHEWETH :-
1. That the Petitioner namely M/s SRKM Steel Pvt. Ltd. (hereinafter referred to
as the petitioner company), is a Private Limited Company incorporated under
the provisions of the Companies Act, 1956, having its Registered Office at C/o
Khetawat Industries, Lokhra Road, Sawkuchi Post Office, Guwahati- 781034.
The Petitioner in the present case is represented by one of its Directors, Sri
Saurav Khetawat, who is authorised on behalf of the petitioner company. All the
Directors & shareholders of the petitioner company are citizens of India and are
as such entitled to all rights and privileges guaranteed by the Constitution of
India as amended from time to time.
2. That the Respondent No. 1 is the State of Assam, represented by the
Commissioner and Secretary to the Government of Assam, Ministry of Finance
(Taxation), the Respondent No. 2 is the Union of India. The Respondent No. 3
is the Commissioner of State Taxes, Guwahati, Assam and the Respondent No.
4 is the Commissioner Central GST, Guwahati, Assam. The Respondent No 5 is
the Superintendent of Taxes, Unit-D, the jurisdictional officer of the petitioner.
3. That the petitioner most respectfully begs to state that the petitioner company
is engaged in the business of Iron, Steel, builders & real estate developers and
was a registered dealer under the Assam Value Added Tax Act, 2003.
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4. That in the year 2017, Parliament enacted the following Acts to levy the tax
known as the “Goods and Services Tax” :-
(i) Central Goods and Services Tax (“Central GST”) under the Central
Goods and Services Tax Act, 2017 (“Central GST Act”) which is a tax
on all intra-State supplies or supplies which originate and are consumed
within the same State.
(ii) Integrated Goods and Services Tax (“Integrated GST”) under the
Integrated Goods and Services Tax Act, 2017 (“Integrated GST Act”)
which is a tax on inter-State supplies or supplies which originate and are
consumed in two different States as well as on supplies in the course of
export or import.
(iii) Compensation Cess under the Goods and Services Tax
(Compensation to States) Act, 2017 (“Compensation Cess Act”) which
is a cess on certain intra-State supplies to provide for compensation to the
States who suffer revenue loss while transitioning to the new taxation
regime.
(iv) Similarly, the State of Assam has levied the Assam Goods and
Service Tax Act, 2017 (“Assam GST”) under the Assam Goods and
Services Tax Act, 2017 (“Assam GST Act”) which is again a tax on
intra-State supplies. This tax is levied in addition to the Central GST
which is levied and collected by the Union of India. However, no Assam
GST can be levied on inter-State supplies or on supplies in the course of
import or export which are exclusively within the legislative domain of
the Union of India.
(v) The Petitioner was liable to get registered under the Central GST Act,
Assam GST Act and the Integrated GST Act by virtue of the provisions
of Section 139 read with Section 22(2) of the Central GST Act as well as
the Assam GST Act. Under those provisions, every person who was
registered under the erstwhile Sales Tax/VAT, Central Excise or Service
Tax regime had to compulsorily register under the Central GST Act and
the Assam GST Act.
(vi) The liability for registration under all the four Acts is concurrent.
One must get registered under all the four Acts at the same time or under
none at all. There is no option to register under any particular Act, but
avoid the registration requirement of the other Acts.
(vii) In fact a single digital utility for registration on the GST Network
governs registration under all the four Acts in a consolidated fashion.
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(viii) The registration, returns, tax payment and collection process is
completely digitized and is administered through the Goods and Services
Tax Network (“GST Network”) which is an online Common Portal on
which registration, returns, tax payment and all other compliances have to
be undertaken. The GST Network synchronizes all GST-related
compliances for all of the more than 30 GST Acts in force throughout
India.
The petitioner craves leave to produce copies of the said Acts, if necessary, at
the stage of hearing.
5. That the petitioner most respectfully begs to state that after the coming into
effect of GST on and from 01.07.2017, the petitioner company Migrated into
GST. At the time of migration to GST, the petitioner company had two
Directors in the name of Sri Gaurav Khetawat and Smt. Sunita Devi Khetawat.
The GST Portal required at least one person as an authorised signatory for doing
online activities viz: filing of returns, forms, refund claim, making amendments
to registration etc. etc. and therefore Sri Gaurav Khetawat was registered as the
authorised signatory on the GST Portal for the aforesaid online activities and
other communication with the Department. The email address as well as the
Mobile Number was also validated with the GST Portal.
A copy of the GST registration Certificate as well as the e-mails dated
27.07.2017 and 23.08.2017 validating the same are annexed herewith and
marked as ANNEXURES-I, II & III respectively
6. That the petitioner most respectfully begs to state that the returns in respect of
GST to be filed by the registered dealer were as follows:-
i. Filing of Trans- 1, to avail Input Tax Credit of old stock pre-GST. The
last date of filing the said Form was extended many times and finally the
last date was extended upto 28.12.2017.
ii. Filing of GSTR- 3B per month, containing all details of purchase and
sales as well as the tax payable for the month. The same is filed only after
payment of due taxes. The last date of filing GSTR- 3B is normally 20th
of next month. However, the Last date for filing GSTR- 3B for the month
of July, 2017 was 25th August, 2017. Further the Central Govt. has also
extended due date for filing GSTR-3B for various months from time to
time in view of inconveniences faced by the assessee.
iii. Filing GSTR- 1 in respect of purchases made during the month to be
filed originally between dated 1st to 10th of next month. However, the
Central Govt. has also extended the said due date on several occasions
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and also made provision of filing quarterly return for the assessee having
turnover less than 1.50 Crores.
iv. GSTR- 2 will open only after filing GSTR- 1, Filing GSTR- 2 in
respect of sales made during the month to be filed between 11th and 15th
of the next month. Presently, in view of the technical glitches on the
portal or the system problems filing of GSTR-2 has been deferred till
further instructions by the Govt.
v. Filing GSTR- 3, (Auto Generated) in respect of tax to be paid, to be
filed between 16th to 20th of next month, only after due payment of tax.
Presently, in view of the technical glitches on the portal or the system
problems filing of GSTR-3 has been deferred till further instructions by
the Govt.
vi. On filing of late return, the petitioner presently needs to pay Rs. 50 per
day as late fees. Further the said late fee in case of NIL return is reduced
to Rs 20 per day. However, the late fees for the months of July, 2017;
August, 2017 and September, 2017 have been waived off.
Further under GST, all the returns have to be filed sequentially or consecutively.
One cannot skip earlier period returns to file later period returns.
7. That the petitioner most respectfully begs to state that however, most
unfortunately the said Director as well as the authorised signatory of the
Company, Sri Gaurav Khetawat suddenly expired on 21.08.2017 at Kolkata. On
expiry of the said Director, the post of Director lay vacant and needed to be
filled up. Therefore the post of Director of the Company was filled up by the
brother of Sri Gaurav Khetawat, namely Sri Saurav Khetawat w.e.f. 21.08.2017.
Thereafter the information in the said regards was submitted before the
Registrar of Companies, Shillong in Form DIR- 12 along with the Board
Resolution and the same was duly registered.
After the appointment of the new Director, it became incumbent to make
suitable amendment in the GST registration in respect of the change of
Directorship of the Company.
A copy of the death certificate of the Director as well as a copy of the
DIR- 12 filed before Registrar of Companies are annexed herewith and
marked as ANNEXURES- IV and V respectively.
8. That the petitioner most respectfully begs to submit that the petitioner tried its
best to update the necessary information on the GST Portal for filing returns as
the last date for filing GSTR- 3B for the month of July, 2017 was 25.08.2017
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(as extended) but even after repeated efforts and requests to the tax dept. the
same was not uploaded. Since Mr. Gaurav Khetawat , the deceased Director
was the only authorised signatory on the GSTN portal so for doing any activity
like filing of return or amending the registration the system was again and again
asking to use digital signature of the deceased director only. Further it may be
noted that for corporate entities any activity on the portal can be done only by
using digital signature. However, the alternative facility of using OTP has been
provided to non-corporate entities whereby any activity where signature is
necessary can be done by using EVC (Electronic Verification Code) on the
registered mobile number. But unfortunately the same is not available to the
corporate entities. The petitioner being the Corporate Entity, the details needed
to be uploaded to use the digital signature of the new Director for filing returns
and the GST Portal was not accepting the Digital Signature of any of the present
Director. Further, the digital signature of the deceased Director cannot be used
as that would also amount to misuse of digital signature of the deceased. The
petitioner also tried to change the password on 25.08.2017, however, the GST
Portal even after change of password did not accept the returns submitted by the
petitioner company.
A copy of the E-Mail receipt for change of password on 25.08.2017 is
annexed herewith and marked as ANNEXURE- VI.
9. That the petitioner most respectfully begs to submit that the petitioner tried to
amend its registration on several occasions. The petitioner also tried to file its
returns from July’2017 onwards. However, the GST Portal merely saved the
amendment request of the petitioner with an option to file the same within 15
days (by using digital signature) of saving without actually allowing them to
amend the registration. Further, the amendment petition was not
approved/accepted with the digital signature of the new Director because he was
not added as new director on the portal.
Copies of E-mails showing the amendment request as saved by the GST
Portal but not allowing to amend the registration for inclusion of new
director are annexed herewith and marked as ANNEXURE- VII series.
10. That the petitioner most respectfully begs to state that the petitioner also
tried to make changes in the authorised signatory by giving the name of the
Director, Smt. Sunita Devi, as new authorised signatory, but the same was also
not accepted as the GST Portal insisted on the digital signature of the deceased
Director, Sri Gaurav Khetawat only. As a result the petitioner could not either
remove the deceased director nor could implead the new Director in the GST
Portal. The petitioner thereafter personally met the officers of the sales tax
department in relation to the issue, but they expressed their inability to do
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anything with the GST Portal. The petitioner also vide letter dated 18.12.2017
to its jurisdictional officer gave the full particulars and details of the problems
in filing return faced by the petitioner to the jurisdictional officers of the Sales
Tax Department but the officers of the department expressed their inability to
do anything in the said matter.
A copy of the letter dated 18.12.2017 is annexed herewith and marked as
ANNEXURE- VIII.
11. That the petitioner most respectfully begs to state that the petitioner having
no other option filed a Grievance before the Support GSTN and the Ticket
number in the said respect was generated as Ticket No. 20172271896848.
However, the said Support GSTN vide reply dated 29.12.2017 closed the
grievance as resolved by informing the petitioner that "In case the Primary
Authorised Signatory has died or is not traceable, you need to approach the
relevant jurisdictional Tax officer to set a New Authorized Signatory in the
GST Portal. You can check your jurisdiction in the Registration
Certificate. Alternatively, you can check the My Profile section to check
your Jurisdiction."
A copy of the mail received from the Helpdesk is annexed herewith and
marked as ANNEXURE- IX.
12. That the petitioner most respectfully begs to state that the petitioner again
approached the jurisdictional officer vide letter dated 08.01.2018 along with the
reply by the GST Helpdesk and again requested before the said officer to be
kind enough to allow the authorised signatory Smt. Sunita Devi Khetawat to use
her digital signature for filing the returns as the returns of the petitioner have
been accepted by the GSTN Portal because of non-acceptance of the new digital
signature. However, the said jurisdictional officer again expressed its inability
to interfere with the GSTN Portal. The petitioner was completely aggrieved in
as much as on one hand there was bereavement in the family of the Directors of
the petitioner and on the other hand the petitioner is neither able to file its
returns and pay tax so that the buyers can take credit of the same and the
petitioner can also take Input Credits of the purchases made by it, nor the
petitioner able to take the credit of its transitional stock by filing TRANS- 1 and
thereby heavy losses were caused not only to the petitioner company and its
buyers but also to the State as well as Central Government in the form of not
getting the revenue.
A copy of the letter dated 08.01.2018 filed before the jurisdictional
officer is annexed herewith and marked as ANNEXURE- X.
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13. That the petitioner most respectfully begs to state that on constant demand
from Trade & Industry including petitioner the Govt. started /opened the EVC
facility available to non-corporate Entities to corporate entities as well w.e.f.
21.02.2018 only. It is made optional for corporate entities to do any activity on
the portal by using EVC in the form of OTP on their registered mobile number.
The petitioner using the said facility immediately filed its monthly tax returns in
Form GSTR-3B from July’2017 to Jan’2018 on 03.03.2018.The petitioner also
paid late fee to the tune of Rs 13,000.00 while filing such returns because
without payment of late fee the portal has not allowed to file GST returns. The
petitioner also tried to amend its registration certificate and to file GSTR-1 by
using the EVC facility but unfortunately the portal has not yet made available
EVC facility in respect of any other activities except filing GSTR-3B. So the
concern of the petitioner to file GSTR-1 and to amend the registration certificate
by deleting deceased director and by adding new director in place thereof still
continues. Further , the petitioner was unable to file forms in respect of any of
the prior periods as the GSTN Portal have automatically closed down the
Trans- 1 returns and the same cannot be opened now as the GSTN Portal have
automatically closed down the same, thereby causing heavy loss and injury to
the petitioner for no fault on its part.
A copy of the tax payment challan dated: 03.03.2018 along with copies of
GSTR-3B filed from July’2017 to Jan’2018 as downloaded from GST
portal are annexed herewith and marked as ANNEXURE- XI & XII
respectively.
14. That being highly aggrieved the petitioner have filed the instant Writ
Petition invoking the provisions of Article 226 of the Constitution of India for
appropriate relief.
15. For that this Hon'ble Court in exercise of its power conferred under Article
226 of the Constitution of India can always interfere or intervene when it is
found that the grave injustice have been caused to the petitioner for no fault on
its part.
16. That the petitioner most respectfully begs to submit that the Petitioner has
been granted a “Registration Number” under the Goods and Service Tax Act,
2017 after duly completing all the requisite formalities. However, Petitioner has
not been able to change the digital signature of the deceased Director with the
new and/or the old Director on the Goods and Services Tax Network. This is
not due to any fault or negligence on behalf of Petitioner. Petitioner has been
continuously calling upon the Respondents and their officers to get this issue
resolved for the past six months, but to no avail. No replacement in digital
signature of deceased with new and/or old Director also means that the
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Petitioner is unable to file returns or pay tax or undertake any of the
compliances required under the statute. Such non-acceptance of returns which
have made the returns lapse by time also exposes the petitioner to huge interest ,
penalty & late fee demands for no fault of the Petitioner. Similarly, Petitioner as
well as its customers is unable to verify the Input Tax Credit available as filing
of GSTR-1 is not being allowed without using digital signature. The present
case is thereby a fit case for Issue of appropriate writ, direction or order to the
Respondents to grant all the benefits under the law which were lost due to the
failure on the part of the GSTN Network in accepting the change in Digital
signature for filing returns as well as immunity from the interest and penalty &
late fee burden occasioned by the failure of Government machinery for payment
of tax and filing of returns on time.
17. That the petitioner most respectfully begs to submit that the entire process of
payment of tax, filing of returns, availing of input tax credit and undertaking of
all compliances required under the four GST Acts is completely digitized and
completely depended on the online profile on the GST Network. Lack of full
operationalization of the online profile thus totally handicaps a taxpayer who is
willing to honestly pay the tax and fulfils all its statutory obligations.
Continuous representations and follow-ups with the statutory authorities have
not yielded any benefit. Petitioner is being punished for no fault of its own.
While the process of digitization is welcomed, statutory benefits and obligations
mandated by the Legislature cannot be allowed to lapse because the digital
system erected by the Executive branch is unable to work properly. Neither the
rule of law, nor the constitutional promise of proper execution and
administration of laws can be surrendered to the vagaries of a digital network.
Under such circumstances only a Court in exercise of its Writ Power under
Article 226 ought to interfere in as much as such failure of the GSTN Portal not
only resulted in huge loss to the petitioner and its dealers, but also to the
Government as well.
18. That the petitioner most respectfully begs to submit that the Respondents are
obligated under the statute to fully operationalize the Petitioner’s online profile
on GST Network. Respondents must be directed to grant all facilities and
benefits which have been unavailable to the Petitioner due to failure of GSTN
Portal to accept changes in Digital Signature cause of expiry of the Director
whose Digital Signature was registered under the GSTN Portal, including the
benefit of the input tax credit provisions. Petitioner should also be allowed to
file all returns, forms and applications whose deadline has gone by like Trans -
1 as well as monthly returns in GSTR-1 with respect from July, 2017 till
February, 2018 or till date of passing of the Order in the present case or
accepting the Digital Signature whichever is later.
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19. That the petitioner most respectfully begs to submit that the interest, penalty
& late fee liability due to non-filing of returns on time, non-payment of tax on
time and other such lapses in compliance with the statute, which have arisen due
to the lack of change of digital signature by the online profile on the GST
Network, should not be foisted on Petitioner. These lapses are a result of failure
of Government machinery and Petitioner should not be penalized for the same.
Further the amount of late fee which has been already paid by the petitioner to
the tune of Rs 13,000.00 should be refunded immediately as the same is
wothout any fault on the part of the petitioner. Petitioner therefore prays that the
Hon’ble Court direct that no interest and penalty liability and or late fees be
imposed on the Petitioner for such lapses which were occasioned by non-
acceptance of returns for change in digital signature.
20. That the petitioner most respectfully begs to submit that even though
Petitioner has collected the tax from customers and is ready to pay the entire tax
on all supplies which have taken place since 1.07.2017 (when the four Acts
came into force), the failure on the part of GSTN Portal to allow the petitioner
to file return without change in Digital Signature and further non-accepting the
change in digital signature on account of expiry of a Director have has
prevented the Petitioner from filing returns and paying the said tax into the
Government Treasury. The purchasers and customers of the Petitioner are
therefore unable to verify the Input Tax Credit relating to the tax paid by them
to the Petitioner. Lack of confirmation of Input Tax Credit benefit to customers
will gravely prejudice Petitioner’s customers and drive them away, thus putting
Petitioner at the risk of a huge loss of business. Since these problems arise out
of improper working of State machinery, Petitioner’s as well as its customers’
rights under Article 19(1)(g) of the Constitution of India must be protected by
this Hon'ble Court.
21. That the petitioner most respectfully begs to submit that non-passing of
input tax credit benefits electronically by Petitioner to its customers also
amounts to an infringement of Section 171 of the Central GST Act and the
Assam GST Act which have been enacted to protect consumers against anti-
profiteering. Thus, Petitioner is exposed to penalties under the anti-profiteering
provisions in Section 171 for no fault of its own.
22. That the petitioner most respectfully begs to submit that the E-way bill is
scheduled to come into effect shortly. As per Rule 138 of the Central GST
Rules, 2017 and the Assam GST Rules, 2017, movement of goods cannot
commence without the E- way Bill which is generated from the online profile
on the GST Network. Any attempt to transport or move goods without an E-
way Bill is unlawful and will render the goods and the conveyance in which
these goods are carried liable to confiscation and the owner of goods and the
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transporter liable for penalty. Section 129 of the Central GST Act, 2017
provides for detention, seizure and release of goods and conveyances in transit
if they are supplied in contravention of the Act or the Rules. Similarly, under
Section 130 of the Central GST Act, 2017, the goods of Petitioner as well as the
conveyance belonging to its transporters are liable for confiscation if the said
goods are transported in contravention of the Act and the Rules. Thus, drastic
consequences flow from the lack of E-Way Bill. No transporter will touch the
Petitioner’s goods till the E-Way Bill is generated by Petitioner. The Petitioner
apprehends that it shall not be able to generate the E-Way Bill due to no fault of
its own because of non-acceptance of digital signature. This Hon’ble Court must
therefore protect the Petitioner as well as the transporters from any adverse
consequences flowing from the non- acceptance of digital signature by the
GSTN Portal.
23. That the petitioner most respectfully also submits that the provision of
section 29 read with rule 15 of the CGST Act and Assam GST Act has made a
provision whereby any registered person who has not furnished return for
continues period of six months , the registration certificate of such person is
liable for cancellation. In the instant case the petitioner though filed monthly tax
return in GSTR-3B till Jan’2018 on 03.03.2018 but the return of outward supply
/sales in Form GSTR-1 is not yet been filed only due to the problem of the
digital signature. As a result the petitioner apprehends that the GST portal or the
GST authorities might cancel its registration certificate automatically whereby
causing irreparable loss and injury to the petitioner. So the petitioner humbly
prays to this Court to protect its fundamental rights as non-filing of GST returns
was never due to the fault of the petitioner.
24. That the petitioner most respectfully begs to submit that the Petitioner itself
has lost out on the Input Tax Credit benefits under the transitional and other
provisions where the date for submitting the documents or filing forms or
undertaking any other compliance required for such Input Tax Credit benefit
has gone by. Petitioner therefore prays that suitable directions be given to the
Respondents to immediately assess and allow the Input Tax Credit benefits to
the Petitioner. Respondents should also be directed to not deny any Input Tax
credit benefit to customers of Respondents due to non-filing of returns, non-
payment of tax or non-fulfilment of any statutory requirement by Petitioner
within the time statutorily prescribed for no fault on the part of the petitioner.
25. That the petitioner most respectfully begs to submit that the actions of the
Respondent Authority is arbitrary, unreasonable and in violation of the
fundamental rights of the Petitioner under Articles 14, 19 and 21 of the
Petitioner as well as the provisions of Article 265 of the Constitution of India.
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26. For that in any view of the matter the actions of respondent authority are
violative of principles of natural justice, illegal and liable to be interfered with.
27. For that the petitioner craves leave to take up further and/or other grounds at
the time of hearing.
28. That the petitioner most respectfully begs to state that since the actions of
the respondent Authorities and the nonworking of the GSTN Portal is
completely illegal and violative of principles of natural justice and
administrative fairplay, arbitrary and perverse, the petitioner in the interim prays
that no action shall be taken against the petitioner, till the disposal of the instant
Writ petition for ends of justice, unless otherwise the petitioner shall suffer
irreparable loss and shall be put to grave hardships and inconvenience.
29. That from what has been stated hereinabove, it would be apparent that the
Petitioner has a strong and fit case and balance of convenience is in favour of
the Petitioner for grant of interim arrangement as prayed for.
30. That the Petitioner has established a strong prima facie case. The Petitioner
submits that the balance of convenience is in its favour and against the
Respondents. The Petitioner further submits that if this Hon’ble Court does not
intervene in this matter and grant the reliefs prayed for it will cause the
Petitioner severe prejudice, grave hardship and irretrievable and irreparable
damage and injury.
31. That the petitioner have no other alternative remedy and remedy sought for
will give the speedy and efficacious remedy to the general cause which is raised
in this application.
32. That the petitioners have not preferred any other application on the self
same fact and cause of action before any other Forum or High Court or Supreme
Court of India.
33. That since there is urgency in the present matter, the instant writ application
has been filed with due care but in limited time as such liberty to place
additional facts by way filing additional affidavit in the present proceedings as
and when necessary may kindly be granted.
34. That this application made bonafide and for the ends of Justice.
Under these circumstances hereinabove stated your petitioner most
humbly and respectfully prays that Your Lordships may graciously be
pleased to pass the following
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a) that the Hon’ble Court may be pleased to issue a writ of mandamus
and/or and other appropriate writ, order or direction to the Respondents to
fully operationalize the online facilities of the Petitioner on the Goods
and Services Tax Network by accepting the change of Digital Signature
of the present Authorised Director within a time limit set by this Court;
b) that the Hon’ble Court may be pleased to issue a writ of mandamus
and/or any other appropriate writ, order or direction to the Respondents to
allow the filing of returns ( GSTR-1 & other subsequent returns) from
July, 2017 to February, 2018 as well as Trans- 1, forms and applications,
payment of tax as well as availing of all benefits and fulfilment of all
obligations under the Assam Goods and Services Tax Act, 2017, Central
Goods and Services Tax Act, 2017, the Integrated Goods and Services
Tax Act, 2017 and the Goods and Services Tax (Compensation to States)
Act, 2017 after the full operationalization of the online profile on the
GST Network, even if the deadline for such availing such benefits,
fulfilling such obligations, filing of returns and forms, payment of tax etc.
has passed;
c) that the Hon’ble Court may be pleased to issue a writ of mandamus
and/or and other appropriate Writ, Direction or Order to the Respondents
to allow all consequential benefits to the customers of Petitioner and
direct that the customers of Petitioner not be adversely affected due to the
lapses of compliance by Petitioner or its customers of any of their
statutory obligations, where such lapses of compliance arise from the
non-acceptance of returns due to change in digital signature to the
Petitioner;
d) that the Hon’ble Court may be pleased to issue a writ of mandamus
and/or and other appropriate Writ, Direction or Order to the Respondents
to not to cancel the registration of the petitioner under the GST law
merely for non-fling of return which was beyond the control of the
petitioner.
e) that the Hon’ble Court may be pleased to issue a Writ of Mandamus
and/or any other appropriate Writ, Direction or Order to the Respondents
to immediately allow the petitioner to change its digital signature and file
returns and grant all statutory benefits, including benefits relating to Input
Tax Credit, which are lost due to non-acceptance of returns by the GSTN
Portal and to finalise the tax liability of Petitioner for the period upto the
date of judgment in this Petition;
f) that the Hon’ble Court may be pleased to issue a writ of mandamus
and/or any other appropriate writ, direction or order to the Respondents to
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assess the Petitioner on a monthly basis and grant all statutory benefits,
including benefits relating to Input Tax Credit in such monthly
assessments, which benefits are otherwise now not available due to the
non-acceptance of the returns by the GSTN Network and to finalise the
tax liability of Petitioner in assessments carried out each month, for the
period from the date of judgment in this Petition to the date of acceptance
of digital signature of the Petitioner;
g) that the Hon’ble Court may be pleased to issue a Writ of Mandamus
and/or any other appropriate Writ, Direction of Order to the Respondents
to restrain them from levying any interest or penalty and/or late fees on
the Petitioner as well as its customers or visiting the Petitioner or its
customers with any adverse consequence which arise due to the lapses in
compliance with the statutory obligations or requirements on Petitioner’s
part or customers’ part where such lapses arise from non-acceptance of
returns by GSTN Portal till the time the digital signature of the petitioner
is allowed to be amended;
h) that the Hon’ble Court may be pleased to issue a Writ of Mandamus
and/or any other appropriate Writ, Direction of Order to the Respondents
to refund the late fees paid on account of late filing of returns on account
of nonacceptance of returns by GSTN portal on account of non-
amendment of digital signature to be replaced from deceased director to
the existing Director by the GSTN Portal.
i) An ad - interim order in respect of (a) and (h) above.
j) Rule NISI in terms of prayers made in (a) to (i) above.
k) Pass such other or further order ororders and/or direction or directions
as to Your Lordship may deem fit and proper.
And for this Act of kindness your petitioners as in duty, bound shall ever pray.
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GAHC010060012018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
Case No. : WP(C) 1834/2018
1: M/S SRKM STEEL PVT. LTD.
A PVT. LTD. CO. INCORPORATED UNDER THE PROVISIONS OF THE
COMPANIES ACT, 1956 AND HAVING ITS REGD. OFFICE AT C/O.
KHETAWAT INDUSTRIES, LOKHRA ROAD, SAWKUCHI POST OFFICE,
GUWAHATI, KAMRUP (M), ASSAM
VERSUS
1: THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,
MINISTRY OF
FINANCE (TAXATION) DEPTT., BLOCK-F, DISPUR, GHY., ASSAM
2: UNION OF INDIA
REP. BY THE COMM. AND SECY. TO THE GOVT. OF INDIA MINISTRY
OF FINANCE (TAXATION) NORTH BLOCK NEW DELHI.
3: COMMISSIONER OF STATE TAXES
GUWAHATI
ASSAM
4: COMMISSIONER CENTRAL GOODS AND SERVICE TAX
BHANGAGARH
GUWAHATI
ASSAM
5: SUPERINTENDENT OF STATE TAXES
UNIT-D
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GUWAHATI
ASSA
Advocate for the Petitioner : MS. M L GOPE
Advocate for the Respondent : SC, FINANCE DEPTT.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
O R D E R
06.04.2018
Mr. D. Saikia, learned Senior Additional Advocate General appearing for the
respondent Taxation Department submits that a system is in place by which a
substituted Director can also be included for the purpose of authorized signatory
in the event the earlier authorized signatory is dead. It is stated that the said
system is as per Rule-19 of the Assam GST Rules, 2017.
Mr. B. Choudhury, learned counsel assisting Mr. D. Saikia shall inform the
learned counsel for the petitioner about the system in place and accordingly, the
petitioner may avail the opportunity to do the needful.
List the matter again on 09.05.2018.
JUDGE
Comparing Assistant
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