HC Directs Assessee to Address Notice Despite Portal Constraint on ITC-02

• Court Appearance:

- Biren Vaishnav, J., hears arguments from advocates Prasad Paranjape and Dhaval Shah for the petitioner and Trupesh Kathiriya for the respondent (State).

• Challenge to Show-Cause Notice:

- The petition challenges a show-cause notice dated 29-9-2023 issued by the respondents.

- Tikona Infinet Private Limited, a transferee company, transferred business and unutilized Input Tax Credit per Business Transfer Agreement with Tikona Digital Networks Private Limited.

• Non-Availability of Form ITC-02:

- Rule 41(1) requires filing Form GST ITC-02 for credit transfer, but it was not available on the GST Portal.

- The petitioner manually filed the form separately, as indicated in a letter to the respondents dated 12-2-2018.

- Cites an order from the Allahabad High Court on a similar issue involving unutilized Input Tax Credit.

• Response from Respondent:

- The Assistant Government Pleader, Trupesh Kathiriya, states that the issue is pending before authorities based on the show-cause notice.

• Court's Consideration:

- The petitioner argues that the show-cause notice is unwarranted due to non-availability of Form ITC-02.

- Court directs the petitioner to file a response to the show-cause notice within two weeks.

- Once the response is filed, the respondents must consider the petitioner's case in light of a previous judgment by the Allahabad High Court.

• Comparison with Allahabad High Court Order:

- The court refers to an order from the Allahabad High Court in Writ Tax No. 859 of 2023.

- The Allahabad High Court held that objections by the petitioner were not considered, and the order was passed on technicalities.

- The petitioner was non-suited due to the unavailability of Form ITC-02 on the GST Portal during its initial months.

• Direction to Respondents:

- The respondents are directed to consider the petitioner's case in light of the Allahabad High Court decision.

- An appropriate order should be passed, taking into account the findings of the Allahabad High Court regarding the non-availability of Form ITC-02 on the GST portal.

• Disposal of the Petition:

- The petition is disposed of with the directive for the respondents to consider the case in accordance with the Allahabad High Court decision.

• Additional Note:

- Direct service is permitted. Tikona Infinet (P.) Ltd. vs, State of Gujarat