NATIONAL INTERNET EXCHANGE OF INDIA  Vs UNION OF INDIA & ORS.

W.P.(C) 10795/2020 Page 1 of 5
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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 19.01.2021

+ W.P.(C) 10795/2020

NATIONAL INTERNET EXCHANGE OF INDIA .… Petitioner

Through: Mr. Karan Sachdev and Mr. Kunal
Kapoor, Advocates.
versus

UNION OF INDIA & ORS. .… Respondents

Through: Mr. Farman Ali, Advocate .

CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON’BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT

SANJEEV NARULA, J. (Oral)

[VIA VIDEO CONFERENCING]

CM APPL. 33850/2020 (for exemption)
1. Exemption allowed, subject to just exceptions.
2. The application is disposed of.

W.P.(C) 10795/2020

3. Respondents have not filed a counter aff idavit despite opportunity
granted to them . Today, Mr. Farman Ali, learned counsel appearing on
behalf of the Respondent s seeks further time for doing so. However, having
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regard to the nature of controversy arising in the present petition , need is not
felt to grant further time to the respondents to file the counter affidavit.
Further, we may also note that in several other matters comprising of a
batch , counter -affidavits had not been filed , and the coordinate Bench of this
court , to which one of us (Sanjeev Narula J.) is a member, has already heard
the arguments and reserved the judgment . Accordingly we are proceed ing to
decide the present petition on the basis of the available record and the
submissions made by the counsel s.

4. By way of the present petition, directions are sought to allow the
petitioner to modify/revise Form GST TRAN -1 filed by it , either by opening
the GST portal or by permitting submission of manual modified/rectified
Form .

5. Briefly stated, the Petitioner is set up as a not -for-profit company
under Section 25 of the Companies Act , having its registered office in Delhi ,
for peering of internet service providers amongst themselves and for routing
the domestic traffic within India. The Petitioner was earlier registered as a
service provider under the F inance Act, 1994 and availed the CENVAT
credit of Central Excise Duty, Service Tax etc. paid on input services,
procured for providing output services and was discharging its output tax
liability by utilizing the said credit.

6. With the advent of the GST laws, the Petitioner migrated to the new
regime and got registered under the CGST Act in the State of Delhi.
Petitioner also availed the benefit of the transitiona l provisions and sought to
migrate the CENVAT credit of Rs. 60,21,471/ – by filing the prescribed Form
TRAN -1 on 1st Septemb er, 2017 , within the time prescribed under Rule 117
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of the CGST Rules, 2017. It is the case of the Petitioner that due to
unintentional and inadvertent error on its part, they failed to take into
account certain invoices pertaining to inputs and/or input service s on which
service tax was paid under the erstwhile service tax regime. Realising this
mistake in March, 2019 , Petitioner approached Respondent No. 3 by way of
a letter dated 29th March, 2019 requesting for the revision of the Form.
Subsequently, the Petitioner also approached the Chief Executive Officer of
Respondent No. 4 making a similar request vide letter dated 29th November,
2019 . However, despite the above -noted and other representations given by
the Petitioner, the Respondents took no action . Left with no other option , the
petitioner has now approached this Court.

7. The learned counsel for the Petitioner submits that issue involved in
the present case is covered by seve ral decisions of this Court, and in
particular the judgment s rendered in Blue Bird Pure Pvt. Ltd. v. Union of
India and Ors ., 2019 SCC OnLine Del 9250 ; Arvind Beauty Brands Retail
Pvt. Ltd. v. Union of India & Ors ., [W.P.(C.) No. 4556/2019 dated 7th
August, 2019 ]; A B Pal Electricals Pvt ltd v. Union of India & Ors.
[W.P.(C.) No. 6537 /2019 dated 17th December, 2019 ]; SRC Aviation (P)
Ltd. v. Union of India and Ors ., [W.P.(C.) No. 12167/2019 dated 17th
December, 2019 ]; and Adfert Technologies Pvt. Ltd. v. UOI , 2019 SCC
OnLine P&H 5701 .

8. On perusal of the record, it emerges that Petitioner has filed TRAN -1
form within the time prescribed by the Respondents under the rules .
Petitioner is holding documents evidencing payment of tax by it on such
inputs / input services received under the erstwhile tax regime. It is thus
eligible to carry forward the credit from erstwhile tax regime to the GST
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regime under Section 140 of the CGST Act read wi th Rule 117 of CGST
Rules. Petitioner claims that this error has occurred becau se of the
introduction of new and vastly different tax regime (GST) of which the
Petitioner had no prior experience whatsoever , and thus it was new to the
filing of Form GST TRAN -1 as well . For the aforesaid bona fide human
error , inadvertently , it failed to take into account certain invoices, on which
service tax amounting to Rs. 40,36,542/ – was n ot reflected in TRAN -1 Form.

9. In nearly identical circumstances, this Court in numerous cases has
taken a view that the Respondents ought to have provided in the system , a
facility for rectification of bona fide errors. The Court had also taken note
that though the system provided for revision of the return, it was impractical
and meaningless, inasmuch as the deadline for making revision coincided
with the last date for filing the original return i.e. 27th December, 2017. We
may also note that the Supreme Court in Union of India & Ors. v. Adfert
Technologies Pvt. Ltd. 2020 SCC OnLine SC 106 , has dismissed the SLP
filed by the department against the judgment rendered by the Punjab &
Haryana High Court . We are satisfied that the difficulty faced by th e Petitioner
was a genuine one . Due to an inadvertent human error and oversight on the
part of the Petitioner, its substantive right should not be denied . Petitioner
should therefore not be precluded from having it s claim examined by the
authorities in accordance with law.

10. In view of the aforesaid decisions, we have no hesitation in allowing
the request of the Petitioner and accordingly the present petition is allowed.
The Respondents are directed to open the online portal so as to enable the
Petitioner to re-file the rectified TRAN -1 form electronically , or, accept the
same manually with the corrections within a period of three weeks from
today. Petitioner’s claim shall ther eafter be processed in accordance with
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law and Respondents shall be at liberty to verify the genuineness of the
claim of the Petitioner . The Petitioner shall thereafter be permitted to
correspondingly revise Form TRAN -2.

11. Accordingly, the writ petition is disposed of in the aforesaid terms.

SANJEEV NARULA, J

RAJIV SAHAI ENDLAW, J
JANUARY 19, 202 1
nd
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