The Bombay High Court ordered CBIC to issue clarification regarding distribution of ISD credit.
The division bench of Justice K.R.Shriram and Justice Gauri Godse noted that the common objection of Respondents in the batch of Petitions is that ISD Credit cannot be transitioned directly into the Electronic Credit Ledger (ECL) maintained under the GST Regime. In view of the provisions of CGST Act, the ISD credit ought to have been distributed by the said ISD to its different units/offices before 1.07.2017 and thereafter the transferee unit/offices ought to have filed TRAN-1 to transition the said credit distributed to it by ISD, into their respective ECL.
The batch of Petitions have been filed in relation to the procedural difficulties / objections raised with regard to distribution and/or utilisation and/or eligibility of Input Service Distributor (ISD) credit of Service Tax/excise duty under Section 140 of the CGST Act 2017.
The court observed that the Petitioners attempted distribution of credit transitioned/reporting of the distributed credit by the ISD registration to their units/offices. However, they were not able to distribute/recognise and report the distribution, as there were procedural and functional difficulties in relation to the GST forms and portal.
The court stated that the Apex Court, to aid the assessees to overcome the procedural/technical hurdles, by an order in Petition(s) for Special Leave to Appeal and other matters in Union of India & Another v/s Filco Trade Centre Pvt. Ltd. & Another directed the GST Network to open the common portal to file/rectify TRAN-1 and TRAN-2 for a period of two months, i.e., with effect from 1st September, 2022 to 31st October, 2022 to enable the different private parties to avail Transitional Credit.
The court while adopting the same approach directed that all Petitioners, through their respective units/offices registered under CGST Act and/or State Acts, as the case may be, can avail this window and file GST TRAN-1/revised GST TRAN-1 at the units/offices between 01.09.2022 to 31.10.2022 in terms of the Supreme Court’s order in Filco Trade.
The court further directed that the GST TRAN-1/ revised GST TRAN-1 filed by the units/offices will be the basis of the manual ISD invoices issued / to be issued by ISD of Petitioner subject to aggregate credit not exceeding the ISD credit available with the ISD Petitioner.
The court ordered the Central Board of Indirect Taxes and Customs (CBIC), to issue a clarification, after due deliberation, in relation to the distribution / reporting of ISD credit preferably within 21 days from the date this is Order is uploaded, keeping in mind the approach adopted by the Supreme Court of India in Filco Trade.
The court while disposing of the petitions ordered that the concerned officers are given 90 days thereafter to verify the veracity of the claim/ Transitional Credit and pass appropriate orders thereon on merits after granting appropriate reasonable opportunity to the parties concerned.
Case title: Unichem Laboratories Limited v/s Union of India and 4 Ors
Citation: WRIT PETITION NO. 109 of 2020