TIKONA INFINET PRIVATE LIMITED VERSUS UNION OF INDIA, COMMISSIONER (IN SITU) , CGST & CENTRAL EXCISE, AUDIT RAIGAD MUMBAI vide WRIT PETITION NO. 16258 OF 2023 dated 08.10.2024

  Citation: 2024 Taxo.online 2375

The Bombay High Court in this case, noted that during the relevant period, the GST portal was not functional for electronic filing of Form GST ITC-02, preventing the petitioner from fulfilling this requirement. The petitioner manually filed the necessary forms and communicated this to the authorities.

The court applied the maxim “Lex non cogit ad impossibilia,” which means the law does not require performance of an impossible act. Since the system to file the form was unavailable, the petitioner could not be faulted for not filing it electronically. It was found that the issuance of the show cause notice was arbitrary and without jurisdiction. Since the authorities admitted that the GST portal was non-functional at the relevant time, faulting the Petitioner for not filing electronically was unjustified.

Reliance placed upon various courts including the Allahabad, Gujarat, Delhi, and Rajasthan High Courts, which previously ruled in similar cases that manual filing of GST forms should be accepted when the portal was not functioning.

The court directed the authorities to consider the manually filed forms and, if required, take appropriate action after following principles of natural justice, including a proper hearing. However, the ITC benefit could not be denied solely on the basis of non-electronic filing.

In this case, The Petitioner manually submitted Form ITC-02, as the online functionality of the GST portal for this form was not available. The authorities, however, alleged that the form should have been filed electronically and issued a show cause notice years later. The Petitioner relied on Section 18(3), which allows ITC transfer during a business transfer such as sale or merger. Further, Rule 41 requires the electronic filing of Form ITC-02. However, since the portal was not functional, manual filing was done instead.

 

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