HC Directed Dept. to Pass Fresh Order Since ITC Claimed in GSTR-3B Due to Non-availability of Form ITC-02 on Portal

Case Details: Tikona Infinet (P.) Ltd. v. State of U.P. - [2023] 153 taxmann.com 170 (Allahabad)

Judiciary and Counsel Details

• • Pritinker Diwaker, CJ. & Ashutosh Srivastava, J.
  • Nishant Mishra & Vedika Nath for the Petitioner.
  • C.S.C. for the Respondent.

Facts of the Case

The assessee entered into a Business Transfer Agreement with a company under which business was transferred to assessee. The company had accumulated ITC balance of more than Rs.3.13 crores which was unutilized and, thus, assessee was entitled to transfer same.

However, the functionality for filing Form ITC-02 was not available on common portal, which was communicated to jurisdictional Assessing Authority but no response was received. Therefore, it availed ITC through GSTR-3B and department issued notice demanding reversal of ITC with interest. It filed writ petition and challenged the demand of ITC reversal.

High Court Held

The Honorable High Court noted that the Form ITC-02 for transfer of ITC was not available on GST Portal as portal was in nascent stage during initial months after its implementation on 1-7-2017. It was incumbent upon assessee to have raised a proper grievance on GST portal help-desk and ought to have waited for relevant Form to go live on GST portal instead of making illegal adjustment.

However, it was admitted fact that the form was not available on GST common portal and rejecting the claim of the assessee in the wake of this fact cannot be justified. Therefore, the Court directed authority to pass fresh order after taking into consideration objections of petitioner and affording it opportunity of hearing, strictly in accordance with law.