HC Directed Assessee to File Reply to SCN Who Failed to File ITC-02 Electronically Due to Non-availability on Portal

Case Details: Tikona Infinet (P.) Ltd. v. State of Gujarat - [2023] 156 taxmann.com 558 (Gujarat)

Judiciary and Counsel Details

• • Biren Vaishnav & Mrs Mauna M. Bhatt, Jj.
  • Prasad Paranjape, Adv. & Dhaval Shah for the Petitioner.
  • Trupesh Kathiriya for the Respondent.

Facts of the Case

In the present case, the petitioner attempted to transfer unused input tax credit as per Rule 41 of CGST Rules, 2017. However, Form ITC-02 under GST portal was unavailable and hence, the petitioner filed Form ITC-02 manually. The department issued a show-cause notice to petitioner for not filing form electronically. It filed writ petition against the notice and contended that petitioner was unable to comply with requirements since form was not available on portal.

High Court Held

The Honorable High Court noted that as per Rule 41, transferor shall file GST ITC-02 electronically on common portal along with a request for transfer of ITC remaining unutilized in his Electronic Credit Ledger (ECL) to the transferee. In the instant case, the functionality for filing Form ITC-02 was not available on the common portal and therefore, petitioner was unable to comply with the requirement of filing the said form.

Thus, the Court directed the petitioner to file response to show-cause notice within 2 weeks and department was directed to consider case of petitioner in light of decision of Division Bench of Allahabad High Court in Writ Tax No. 859 of 2023, where it was held that transferee company shall not be liable to file Form GST ITC-02 electronically if Form was not available on GST portal.