DISTRICT:

IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL

PRADESH)

(EXTRA ORDINARY CIVIL JURISDICTION)

WRIT PETITION (C) NO. /2018

To

The Hon’ble Mr. Justice Ajit Singh, B.Sc., LL.B, the Chief Justice of the Hon’ble

Gauhati High Court and His Lordship’s other companion Justices of the said

Hon’ble Court.

IN THE MATTER OF :-

An application under Article 226 of the Constitution of India for issuance

of a writ in the nature of Certiorari and/or Mandamus and /or any other

appropriate Writ, Order or Direction of like nature.

-AND-

IN THE MATTER OF :-

Violation and Infringement of the Fundamental and other legal rights

guaranteed under Part – III of the Constitution of India.

-AND-

IN THE MATTER OF :-

GSTN Portal not allowing to update digital signature of the new Director

to be replaced by the deceased Director, System is illegally accepting

digital signature of only the deceased authorised Director.

IN THE MATTER OF :-

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GSTN Portal not allowing to amend the registration certificate on

account of death of one of the Directors and inclusion of new Director in

place thereof due to non-acceptance of digital signature of new Director

by the portal.

-AND-

IN THE MATTER OF:-

Not making available the filing of monthly returns (GSTR-1) as well as

Transitional returns/forms on account of non-acceptance of the digital

signature of the new Director.

-AND-

IN THE MATTER OF:-

Closure of GSTN Portal to accept returns for prior period calling for

penalty, late fees and loss of Input Tax Credit for no fault on the part of

petitioner.

-AND-

IN THE MATTER OF:

M/s SRKM Steel Pvt. Ltd., A Private Limited Company incorporated under

the provisions of the Companies Act, 1956 and having its registered

office at C/o Khetawat Industries, Lokhra Road, Sawkuchi Post Office,

Guwahati- 781034 Kamrup (M), Assam.

......... Petitioner

-Versus-

1. The State of Assam,

represented by the Commissioner & Secretary to the Government of

Assam, Ministry of Finance(Taxation) Department, Block- F, Dispur ,

Guwahati-6, Assam.

2. Union of India,

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represented by the Commissioner & Secretary to the Government of

India, Ministry of Finance(Taxation) North Block, New Delhi.

3. Commissioner of State Taxes,

Guwahati, Assam.

4. Commissioner Central Goods & Service Tax,

Bhangagarh, Guwahati, Assam.

5. Superintendent of Taxes,

Unit- D, Guwahati, Assam

......... Respondents

The humble petition of the petitioner above named.

MOST RESPECTFULLY SHEWETH :-

1. That the Petitioner namely M/s SRKM Steel Pvt. Ltd. (hereinafter referred to

as the petitioner company), is a Private Limited Company incorporated under

the provisions of the Companies Act, 1956, having its Registered Office at C/o

Khetawat Industries, Lokhra Road, Sawkuchi Post Office, Guwahati- 781034.

The Petitioner in the present case is represented by one of its Directors, Sri

Saurav Khetawat, who is authorised on behalf of the petitioner company. All the

Directors & shareholders of the petitioner company are citizens of India and are

as such entitled to all rights and privileges guaranteed by the Constitution of

India as amended from time to time.

2. That the Respondent No. 1 is the State of Assam, represented by the

Commissioner and Secretary to the Government of Assam, Ministry of Finance

(Taxation), the Respondent No. 2 is the Union of India. The Respondent No. 3

is the Commissioner of State Taxes, Guwahati, Assam and the Respondent No.

4 is the Commissioner Central GST, Guwahati, Assam. The Respondent No 5 is

the Superintendent of Taxes, Unit-D, the jurisdictional officer of the petitioner.

3. That the petitioner most respectfully begs to state that the petitioner company

is engaged in the business of Iron, Steel, builders & real estate developers and

was a registered dealer under the Assam Value Added Tax Act, 2003.

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4. That in the year 2017, Parliament enacted the following Acts to levy the tax

known as the “Goods and Services Tax” :-

(i) Central Goods and Services Tax (“Central GST”) under the Central

Goods and Services Tax Act, 2017 (“Central GST Act”) which is a tax

on all intra-State supplies or supplies which originate and are consumed

within the same State.

(ii) Integrated Goods and Services Tax (“Integrated GST”) under the

Integrated Goods and Services Tax Act, 2017 (“Integrated GST Act”)

which is a tax on inter-State supplies or supplies which originate and are

consumed in two different States as well as on supplies in the course of

export or import.

(iii) Compensation Cess under the Goods and Services Tax

(Compensation to States) Act, 2017 (“Compensation Cess Act”) which

is a cess on certain intra-State supplies to provide for compensation to the

States who suffer revenue loss while transitioning to the new taxation

regime.

(iv) Similarly, the State of Assam has levied the Assam Goods and

Service Tax Act, 2017 (“Assam GST”) under the Assam Goods and

Services Tax Act, 2017 (“Assam GST Act”) which is again a tax on

intra-State supplies. This tax is levied in addition to the Central GST

which is levied and collected by the Union of India. However, no Assam

GST can be levied on inter-State supplies or on supplies in the course of

import or export which are exclusively within the legislative domain of

the Union of India.

(v) The Petitioner was liable to get registered under the Central GST Act,

Assam GST Act and the Integrated GST Act by virtue of the provisions

of Section 139 read with Section 22(2) of the Central GST Act as well as

the Assam GST Act. Under those provisions, every person who was

registered under the erstwhile Sales Tax/VAT, Central Excise or Service

Tax regime had to compulsorily register under the Central GST Act and

the Assam GST Act.

(vi) The liability for registration under all the four Acts is concurrent.

One must get registered under all the four Acts at the same time or under

none at all. There is no option to register under any particular Act, but

avoid the registration requirement of the other Acts.

(vii) In fact a single digital utility for registration on the GST Network

governs registration under all the four Acts in a consolidated fashion.

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(viii) The registration, returns, tax payment and collection process is

completely digitized and is administered through the Goods and Services

Tax Network (“GST Network”) which is an online Common Portal on

which registration, returns, tax payment and all other compliances have to

be undertaken. The GST Network synchronizes all GST-related

compliances for all of the more than 30 GST Acts in force throughout

India.

The petitioner craves leave to produce copies of the said Acts, if necessary, at

the stage of hearing.

5. That the petitioner most respectfully begs to state that after the coming into

effect of GST on and from 01.07.2017, the petitioner company Migrated into

GST. At the time of migration to GST, the petitioner company had two

Directors in the name of Sri Gaurav Khetawat and Smt. Sunita Devi Khetawat.

The GST Portal required at least one person as an authorised signatory for doing

online activities viz: filing of returns, forms, refund claim, making amendments

to registration etc. etc. and therefore Sri Gaurav Khetawat was registered as the

authorised signatory on the GST Portal for the aforesaid online activities and

other communication with the Department. The email address as well as the

Mobile Number was also validated with the GST Portal.

A copy of the GST registration Certificate as well as the e-mails dated

27.07.2017 and 23.08.2017 validating the same are annexed herewith and

marked as ANNEXURES-I, II & III respectively

6. That the petitioner most respectfully begs to state that the returns in respect of

GST to be filed by the registered dealer were as follows:-

i. Filing of Trans- 1, to avail Input Tax Credit of old stock pre-GST. The

last date of filing the said Form was extended many times and finally the

last date was extended upto 28.12.2017.

ii. Filing of GSTR- 3B per month, containing all details of purchase and

sales as well as the tax payable for the month. The same is filed only after

payment of due taxes. The last date of filing GSTR- 3B is normally 20th

of next month. However, the Last date for filing GSTR- 3B for the month

of July, 2017 was 25th August, 2017. Further the Central Govt. has also

extended due date for filing GSTR-3B for various months from time to

time in view of inconveniences faced by the assessee.

iii. Filing GSTR- 1 in respect of purchases made during the month to be

filed originally between dated 1st to 10th of next month. However, the

Central Govt. has also extended the said due date on several occasions

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and also made provision of filing quarterly return for the assessee having

turnover less than 1.50 Crores.

iv. GSTR- 2 will open only after filing GSTR- 1, Filing GSTR- 2 in

respect of sales made during the month to be filed between 11th and 15th

of the next month. Presently, in view of the technical glitches on the

portal or the system problems filing of GSTR-2 has been deferred till

further instructions by the Govt.

v. Filing GSTR- 3, (Auto Generated) in respect of tax to be paid, to be

filed between 16th to 20th of next month, only after due payment of tax.

Presently, in view of the technical glitches on the portal or the system

problems filing of GSTR-3 has been deferred till further instructions by

the Govt.

vi. On filing of late return, the petitioner presently needs to pay Rs. 50 per

day as late fees. Further the said late fee in case of NIL return is reduced

to Rs 20 per day. However, the late fees for the months of July, 2017;

August, 2017 and September, 2017 have been waived off.

Further under GST, all the returns have to be filed sequentially or consecutively.

One cannot skip earlier period returns to file later period returns.

7. That the petitioner most respectfully begs to state that however, most

unfortunately the said Director as well as the authorised signatory of the

Company, Sri Gaurav Khetawat suddenly expired on 21.08.2017 at Kolkata. On

expiry of the said Director, the post of Director lay vacant and needed to be

filled up. Therefore the post of Director of the Company was filled up by the

brother of Sri Gaurav Khetawat, namely Sri Saurav Khetawat w.e.f. 21.08.2017.

Thereafter the information in the said regards was submitted before the

Registrar of Companies, Shillong in Form DIR- 12 along with the Board

Resolution and the same was duly registered.

After the appointment of the new Director, it became incumbent to make

suitable amendment in the GST registration in respect of the change of

Directorship of the Company.

A copy of the death certificate of the Director as well as a copy of the

DIR- 12 filed before Registrar of Companies are annexed herewith and

marked as ANNEXURES- IV and V respectively.

8. That the petitioner most respectfully begs to submit that the petitioner tried its

best to update the necessary information on the GST Portal for filing returns as

the last date for filing GSTR- 3B for the month of July, 2017 was 25.08.2017

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(as extended) but even after repeated efforts and requests to the tax dept. the

same was not uploaded. Since Mr. Gaurav Khetawat , the deceased Director

was the only authorised signatory on the GSTN portal so for doing any activity

like filing of return or amending the registration the system was again and again

asking to use digital signature of the deceased director only. Further it may be

noted that for corporate entities any activity on the portal can be done only by

using digital signature. However, the alternative facility of using OTP has been

provided to non-corporate entities whereby any activity where signature is

necessary can be done by using EVC (Electronic Verification Code) on the

registered mobile number. But unfortunately the same is not available to the

corporate entities. The petitioner being the Corporate Entity, the details needed

to be uploaded to use the digital signature of the new Director for filing returns

and the GST Portal was not accepting the Digital Signature of any of the present

Director. Further, the digital signature of the deceased Director cannot be used

as that would also amount to misuse of digital signature of the deceased. The

petitioner also tried to change the password on 25.08.2017, however, the GST

Portal even after change of password did not accept the returns submitted by the

petitioner company.

A copy of the E-Mail receipt for change of password on 25.08.2017 is

annexed herewith and marked as ANNEXURE- VI.

9. That the petitioner most respectfully begs to submit that the petitioner tried to

amend its registration on several occasions. The petitioner also tried to file its

returns from July’2017 onwards. However, the GST Portal merely saved the

amendment request of the petitioner with an option to file the same within 15

days (by using digital signature) of saving without actually allowing them to

amend the registration. Further, the amendment petition was not

approved/accepted with the digital signature of the new Director because he was

not added as new director on the portal.

Copies of E-mails showing the amendment request as saved by the GST

Portal but not allowing to amend the registration for inclusion of new

director are annexed herewith and marked as ANNEXURE- VII series.

10. That the petitioner most respectfully begs to state that the petitioner also

tried to make changes in the authorised signatory by giving the name of the

Director, Smt. Sunita Devi, as new authorised signatory, but the same was also

not accepted as the GST Portal insisted on the digital signature of the deceased

Director, Sri Gaurav Khetawat only. As a result the petitioner could not either

remove the deceased director nor could implead the new Director in the GST

Portal. The petitioner thereafter personally met the officers of the sales tax

department in relation to the issue, but they expressed their inability to do

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anything with the GST Portal. The petitioner also vide letter dated 18.12.2017

to its jurisdictional officer gave the full particulars and details of the problems

in filing return faced by the petitioner to the jurisdictional officers of the Sales

Tax Department but the officers of the department expressed their inability to

do anything in the said matter.

A copy of the letter dated 18.12.2017 is annexed herewith and marked as

ANNEXURE- VIII.

11. That the petitioner most respectfully begs to state that the petitioner having

no other option filed a Grievance before the Support GSTN and the Ticket

number in the said respect was generated as Ticket No. 20172271896848.

However, the said Support GSTN vide reply dated 29.12.2017 closed the

grievance as resolved by informing the petitioner that "In case the Primary

Authorised Signatory has died or is not traceable, you need to approach the

relevant jurisdictional Tax officer to set a New Authorized Signatory in the

GST Portal. You can check your jurisdiction in the Registration

Certificate. Alternatively, you can check the My Profile section to check

your Jurisdiction."

A copy of the mail received from the Helpdesk is annexed herewith and

marked as ANNEXURE- IX.

12. That the petitioner most respectfully begs to state that the petitioner again

approached the jurisdictional officer vide letter dated 08.01.2018 along with the

reply by the GST Helpdesk and again requested before the said officer to be

kind enough to allow the authorised signatory Smt. Sunita Devi Khetawat to use

her digital signature for filing the returns as the returns of the petitioner have

been accepted by the GSTN Portal because of non-acceptance of the new digital

signature. However, the said jurisdictional officer again expressed its inability

to interfere with the GSTN Portal. The petitioner was completely aggrieved in

as much as on one hand there was bereavement in the family of the Directors of

the petitioner and on the other hand the petitioner is neither able to file its

returns and pay tax so that the buyers can take credit of the same and the

petitioner can also take Input Credits of the purchases made by it, nor the

petitioner able to take the credit of its transitional stock by filing TRANS- 1 and

thereby heavy losses were caused not only to the petitioner company and its

buyers but also to the State as well as Central Government in the form of not

getting the revenue.

A copy of the letter dated 08.01.2018 filed before the jurisdictional

officer is annexed herewith and marked as ANNEXURE- X.

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13. That the petitioner most respectfully begs to state that on constant demand

from Trade & Industry including petitioner the Govt. started /opened the EVC

facility available to non-corporate Entities to corporate entities as well w.e.f.

21.02.2018 only. It is made optional for corporate entities to do any activity on

the portal by using EVC in the form of OTP on their registered mobile number.

The petitioner using the said facility immediately filed its monthly tax returns in

Form GSTR-3B from July’2017 to Jan’2018 on 03.03.2018.The petitioner also

paid late fee to the tune of Rs 13,000.00 while filing such returns because

without payment of late fee the portal has not allowed to file GST returns. The

petitioner also tried to amend its registration certificate and to file GSTR-1 by

using the EVC facility but unfortunately the portal has not yet made available

EVC facility in respect of any other activities except filing GSTR-3B. So the

concern of the petitioner to file GSTR-1 and to amend the registration certificate

by deleting deceased director and by adding new director in place thereof still

continues. Further , the petitioner was unable to file forms in respect of any of

the prior periods as the GSTN Portal have automatically closed down the

Trans- 1 returns and the same cannot be opened now as the GSTN Portal have

automatically closed down the same, thereby causing heavy loss and injury to

the petitioner for no fault on its part.

A copy of the tax payment challan dated: 03.03.2018 along with copies of

GSTR-3B filed from July’2017 to Jan’2018 as downloaded from GST

portal are annexed herewith and marked as ANNEXURE- XI & XII

respectively.

14. That being highly aggrieved the petitioner have filed the instant Writ

Petition invoking the provisions of Article 226 of the Constitution of India for

appropriate relief.

15. For that this Hon'ble Court in exercise of its power conferred under Article

226 of the Constitution of India can always interfere or intervene when it is

found that the grave injustice have been caused to the petitioner for no fault on

its part.

16. That the petitioner most respectfully begs to submit that the Petitioner has

been granted a “Registration Number” under the Goods and Service Tax Act,

2017 after duly completing all the requisite formalities. However, Petitioner has

not been able to change the digital signature of the deceased Director with the

new and/or the old Director on the Goods and Services Tax Network. This is

not due to any fault or negligence on behalf of Petitioner. Petitioner has been

continuously calling upon the Respondents and their officers to get this issue

resolved for the past six months, but to no avail. No replacement in digital

signature of deceased with new and/or old Director also means that the

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Petitioner is unable to file returns or pay tax or undertake any of the

compliances required under the statute. Such non-acceptance of returns which

have made the returns lapse by time also exposes the petitioner to huge interest ,

penalty & late fee demands for no fault of the Petitioner. Similarly, Petitioner as

well as its customers is unable to verify the Input Tax Credit available as filing

of GSTR-1 is not being allowed without using digital signature. The present

case is thereby a fit case for Issue of appropriate writ, direction or order to the

Respondents to grant all the benefits under the law which were lost due to the

failure on the part of the GSTN Network in accepting the change in Digital

signature for filing returns as well as immunity from the interest and penalty &

late fee burden occasioned by the failure of Government machinery for payment

of tax and filing of returns on time.

17. That the petitioner most respectfully begs to submit that the entire process of

payment of tax, filing of returns, availing of input tax credit and undertaking of

all compliances required under the four GST Acts is completely digitized and

completely depended on the online profile on the GST Network. Lack of full

operationalization of the online profile thus totally handicaps a taxpayer who is

willing to honestly pay the tax and fulfils all its statutory obligations.

Continuous representations and follow-ups with the statutory authorities have

not yielded any benefit. Petitioner is being punished for no fault of its own.

While the process of digitization is welcomed, statutory benefits and obligations

mandated by the Legislature cannot be allowed to lapse because the digital

system erected by the Executive branch is unable to work properly. Neither the

rule of law, nor the constitutional promise of proper execution and

administration of laws can be surrendered to the vagaries of a digital network.

Under such circumstances only a Court in exercise of its Writ Power under

Article 226 ought to interfere in as much as such failure of the GSTN Portal not

only resulted in huge loss to the petitioner and its dealers, but also to the

Government as well.

18. That the petitioner most respectfully begs to submit that the Respondents are

obligated under the statute to fully operationalize the Petitioner’s online profile

on GST Network. Respondents must be directed to grant all facilities and

benefits which have been unavailable to the Petitioner due to failure of GSTN

Portal to accept changes in Digital Signature cause of expiry of the Director

whose Digital Signature was registered under the GSTN Portal, including the

benefit of the input tax credit provisions. Petitioner should also be allowed to

file all returns, forms and applications whose deadline has gone by like Trans -

1 as well as monthly returns in GSTR-1 with respect from July, 2017 till

February, 2018 or till date of passing of the Order in the present case or

accepting the Digital Signature whichever is later.

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19. That the petitioner most respectfully begs to submit that the interest, penalty

& late fee liability due to non-filing of returns on time, non-payment of tax on

time and other such lapses in compliance with the statute, which have arisen due

to the lack of change of digital signature by the online profile on the GST

Network, should not be foisted on Petitioner. These lapses are a result of failure

of Government machinery and Petitioner should not be penalized for the same.

Further the amount of late fee which has been already paid by the petitioner to

the tune of Rs 13,000.00 should be refunded immediately as the same is

wothout any fault on the part of the petitioner. Petitioner therefore prays that the

Hon’ble Court direct that no interest and penalty liability and or late fees be

imposed on the Petitioner for such lapses which were occasioned by non-

acceptance of returns for change in digital signature.

20. That the petitioner most respectfully begs to submit that even though

Petitioner has collected the tax from customers and is ready to pay the entire tax

on all supplies which have taken place since 1.07.2017 (when the four Acts

came into force), the failure on the part of GSTN Portal to allow the petitioner

to file return without change in Digital Signature and further non-accepting the

change in digital signature on account of expiry of a Director have has

prevented the Petitioner from filing returns and paying the said tax into the

Government Treasury. The purchasers and customers of the Petitioner are

therefore unable to verify the Input Tax Credit relating to the tax paid by them

to the Petitioner. Lack of confirmation of Input Tax Credit benefit to customers

will gravely prejudice Petitioner’s customers and drive them away, thus putting

Petitioner at the risk of a huge loss of business. Since these problems arise out

of improper working of State machinery, Petitioner’s as well as its customers’

rights under Article 19(1)(g) of the Constitution of India must be protected by

this Hon'ble Court.

21. That the petitioner most respectfully begs to submit that non-passing of

input tax credit benefits electronically by Petitioner to its customers also

amounts to an infringement of Section 171 of the Central GST Act and the

Assam GST Act which have been enacted to protect consumers against anti-

profiteering. Thus, Petitioner is exposed to penalties under the anti-profiteering

provisions in Section 171 for no fault of its own.

22. That the petitioner most respectfully begs to submit that the E-way bill is

scheduled to come into effect shortly. As per Rule 138 of the Central GST

Rules, 2017 and the Assam GST Rules, 2017, movement of goods cannot

commence without the E- way Bill which is generated from the online profile

on the GST Network. Any attempt to transport or move goods without an E-

way Bill is unlawful and will render the goods and the conveyance in which

these goods are carried liable to confiscation and the owner of goods and the

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transporter liable for penalty. Section 129 of the Central GST Act, 2017

provides for detention, seizure and release of goods and conveyances in transit

if they are supplied in contravention of the Act or the Rules. Similarly, under

Section 130 of the Central GST Act, 2017, the goods of Petitioner as well as the

conveyance belonging to its transporters are liable for confiscation if the said

goods are transported in contravention of the Act and the Rules. Thus, drastic

consequences flow from the lack of E-Way Bill. No transporter will touch the

Petitioner’s goods till the E-Way Bill is generated by Petitioner. The Petitioner

apprehends that it shall not be able to generate the E-Way Bill due to no fault of

its own because of non-acceptance of digital signature. This Hon’ble Court must

therefore protect the Petitioner as well as the transporters from any adverse

consequences flowing from the non- acceptance of digital signature by the

GSTN Portal.

23. That the petitioner most respectfully also submits that the provision of

section 29 read with rule 15 of the CGST Act and Assam GST Act has made a

provision whereby any registered person who has not furnished return for

continues period of six months , the registration certificate of such person is

liable for cancellation. In the instant case the petitioner though filed monthly tax

return in GSTR-3B till Jan’2018 on 03.03.2018 but the return of outward supply

/sales in Form GSTR-1 is not yet been filed only due to the problem of the

digital signature. As a result the petitioner apprehends that the GST portal or the

GST authorities might cancel its registration certificate automatically whereby

causing irreparable loss and injury to the petitioner. So the petitioner humbly

prays to this Court to protect its fundamental rights as non-filing of GST returns

was never due to the fault of the petitioner.

24. That the petitioner most respectfully begs to submit that the Petitioner itself

has lost out on the Input Tax Credit benefits under the transitional and other

provisions where the date for submitting the documents or filing forms or

undertaking any other compliance required for such Input Tax Credit benefit

has gone by. Petitioner therefore prays that suitable directions be given to the

Respondents to immediately assess and allow the Input Tax Credit benefits to

the Petitioner. Respondents should also be directed to not deny any Input Tax

credit benefit to customers of Respondents due to non-filing of returns, non-

payment of tax or non-fulfilment of any statutory requirement by Petitioner

within the time statutorily prescribed for no fault on the part of the petitioner.

25. That the petitioner most respectfully begs to submit that the actions of the

Respondent Authority is arbitrary, unreasonable and in violation of the

fundamental rights of the Petitioner under Articles 14, 19 and 21 of the

Petitioner as well as the provisions of Article 265 of the Constitution of India.

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26. For that in any view of the matter the actions of respondent authority are

violative of principles of natural justice, illegal and liable to be interfered with.

27. For that the petitioner craves leave to take up further and/or other grounds at

the time of hearing.

28. That the petitioner most respectfully begs to state that since the actions of

the respondent Authorities and the nonworking of the GSTN Portal is

completely illegal and violative of principles of natural justice and

administrative fairplay, arbitrary and perverse, the petitioner in the interim prays

that no action shall be taken against the petitioner, till the disposal of the instant

Writ petition for ends of justice, unless otherwise the petitioner shall suffer

irreparable loss and shall be put to grave hardships and inconvenience.

29. That from what has been stated hereinabove, it would be apparent that the

Petitioner has a strong and fit case and balance of convenience is in favour of

the Petitioner for grant of interim arrangement as prayed for.

30. That the Petitioner has established a strong prima facie case. The Petitioner

submits that the balance of convenience is in its favour and against the

Respondents. The Petitioner further submits that if this Hon’ble Court does not

intervene in this matter and grant the reliefs prayed for it will cause the

Petitioner severe prejudice, grave hardship and irretrievable and irreparable

damage and injury.

31. That the petitioner have no other alternative remedy and remedy sought for

will give the speedy and efficacious remedy to the general cause which is raised

in this application.

32. That the petitioners have not preferred any other application on the self

same fact and cause of action before any other Forum or High Court or Supreme

Court of India.

33. That since there is urgency in the present matter, the instant writ application

has been filed with due care but in limited time as such liberty to place

additional facts by way filing additional affidavit in the present proceedings as

and when necessary may kindly be granted.

34. That this application made bonafide and for the ends of Justice.

Under these circumstances hereinabove stated your petitioner most

humbly and respectfully prays that Your Lordships may graciously be

pleased to pass the following

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a) that the Hon’ble Court may be pleased to issue a writ of mandamus

and/or and other appropriate writ, order or direction to the Respondents to

fully operationalize the online facilities of the Petitioner on the Goods

and Services Tax Network by accepting the change of Digital Signature

of the present Authorised Director within a time limit set by this Court;

b) that the Hon’ble Court may be pleased to issue a writ of mandamus

and/or any other appropriate writ, order or direction to the Respondents to

allow the filing of returns ( GSTR-1 & other subsequent returns) from

July, 2017 to February, 2018 as well as Trans- 1, forms and applications,

payment of tax as well as availing of all benefits and fulfilment of all

obligations under the Assam Goods and Services Tax Act, 2017, Central

Goods and Services Tax Act, 2017, the Integrated Goods and Services

Tax Act, 2017 and the Goods and Services Tax (Compensation to States)

Act, 2017 after the full operationalization of the online profile on the

GST Network, even if the deadline for such availing such benefits,

fulfilling such obligations, filing of returns and forms, payment of tax etc.

has passed;

c) that the Hon’ble Court may be pleased to issue a writ of mandamus

and/or and other appropriate Writ, Direction or Order to the Respondents

to allow all consequential benefits to the customers of Petitioner and

direct that the customers of Petitioner not be adversely affected due to the

lapses of compliance by Petitioner or its customers of any of their

statutory obligations, where such lapses of compliance arise from the

non-acceptance of returns due to change in digital signature to the

Petitioner;

d) that the Hon’ble Court may be pleased to issue a writ of mandamus

and/or and other appropriate Writ, Direction or Order to the Respondents

to not to cancel the registration of the petitioner under the GST law

merely for non-fling of return which was beyond the control of the

petitioner.

e) that the Hon’ble Court may be pleased to issue a Writ of Mandamus

and/or any other appropriate Writ, Direction or Order to the Respondents

to immediately allow the petitioner to change its digital signature and file

returns and grant all statutory benefits, including benefits relating to Input

Tax Credit, which are lost due to non-acceptance of returns by the GSTN

Portal and to finalise the tax liability of Petitioner for the period upto the

date of judgment in this Petition;

f) that the Hon’ble Court may be pleased to issue a writ of mandamus

and/or any other appropriate writ, direction or order to the Respondents to

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assess the Petitioner on a monthly basis and grant all statutory benefits,

including benefits relating to Input Tax Credit in such monthly

assessments, which benefits are otherwise now not available due to the

non-acceptance of the returns by the GSTN Network and to finalise the

tax liability of Petitioner in assessments carried out each month, for the

period from the date of judgment in this Petition to the date of acceptance

of digital signature of the Petitioner;

g) that the Hon’ble Court may be pleased to issue a Writ of Mandamus

and/or any other appropriate Writ, Direction of Order to the Respondents

to restrain them from levying any interest or penalty and/or late fees on

the Petitioner as well as its customers or visiting the Petitioner or its

customers with any adverse consequence which arise due to the lapses in

compliance with the statutory obligations or requirements on Petitioner’s

part or customers’ part where such lapses arise from non-acceptance of

returns by GSTN Portal till the time the digital signature of the petitioner

is allowed to be amended;

h) that the Hon’ble Court may be pleased to issue a Writ of Mandamus

and/or any other appropriate Writ, Direction of Order to the Respondents

to refund the late fees paid on account of late filing of returns on account

of nonacceptance of returns by GSTN portal on account of non-

amendment of digital signature to be replaced from deceased director to

the existing Director by the GSTN Portal.

i) An ad - interim order in respect of (a) and (h) above.

j) Rule NISI in terms of prayers made in (a) to (i) above.

k) Pass such other or further order ororders and/or direction or directions

as to Your Lordship may deem fit and proper.

And for this Act of kindness your petitioners as in duty, bound shall ever pray.

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GAHC010060012018

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND

ARUNACHAL PRADESH)

Case No. : WP(C) 1834/2018

1: M/S SRKM STEEL PVT. LTD.

A PVT. LTD. CO. INCORPORATED UNDER THE PROVISIONS OF THE

COMPANIES ACT, 1956 AND HAVING ITS REGD. OFFICE AT C/O.

KHETAWAT INDUSTRIES, LOKHRA ROAD, SAWKUCHI POST OFFICE,

GUWAHATI, KAMRUP (M), ASSAM

VERSUS

1: THE STATE OF ASSAM AND 4 ORS.

REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,

MINISTRY OF

FINANCE (TAXATION) DEPTT., BLOCK-F, DISPUR, GHY., ASSAM

2: UNION OF INDIA

REP. BY THE COMM. AND SECY. TO THE GOVT. OF INDIA MINISTRY

OF FINANCE (TAXATION) NORTH BLOCK NEW DELHI.

3: COMMISSIONER OF STATE TAXES

GUWAHATI

ASSAM

4: COMMISSIONER CENTRAL GOODS AND SERVICE TAX

BHANGAGARH

GUWAHATI

ASSAM

5: SUPERINTENDENT OF STATE TAXES

UNIT-D

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GUWAHATI

ASSA

Advocate for the Petitioner : MS. M L GOPE

Advocate for the Respondent : SC, FINANCE DEPTT.

BEFORE

HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

O R D E R

06.04.2018

Mr. D. Saikia, learned Senior Additional Advocate General appearing for the

respondent Taxation Department submits that a system is in place by which a

substituted Director can also be included for the purpose of authorized signatory

in the event the earlier authorized signatory is dead. It is stated that the said

system is as per Rule-19 of the Assam GST Rules, 2017.

Mr. B. Choudhury, learned counsel assisting Mr. D. Saikia shall inform the

learned counsel for the petitioner about the system in place and accordingly, the

petitioner may avail the opportunity to do the needful.

List the matter again on 09.05.2018.

JUDGE

Comparing Assistant

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