The petitioner entered into a Business Transfer Agreement on 17-8-2017 with another Company i.e. M/s Tikona Digital Network Pvt. Ltd. under which
the business was transferred to the petitioner. M/s Tikona Digital Network (TDA) had accumulated ITC balance of more than Rs. 3,1313,68,997/- which
was unutilized. The petitioner attempted to transfer ITC as per the procedure prescribed under Rule 41 of the CGST Rules, 2017, however functionality
for filing Form ITC-02 was not available on the common portal. The non availability was communicated to the jurisdictional Assessing Authority. Faced
with serious working capital issues, the petitioner manually accepted and availed the ITC of Rs. 3,13,68,997/-. After a lapse of five years, the petitioner
was served with a show cause notice dated 28-2-2023 requiring the petitioner to serve the differential ITC of Rs. 2,88,35,905.60/- along with interest
and penalty. The total ITC available in Form GSTR-2A is Rs. 2,22,24,921.08/- whereas petitioner availed the ITC of Rs. 5,10,60,826.68/-. The petitioner
submitted the reply but impugned order creating the demand was passed.
The High Court found that the petitioner has been non suited on the ground that Form ITC-02 for transfer of input tax credit was not available
on the GST Portal which was in nascent stage during the initial months after its implementation on 1-7-2017 and it was incumbent upon the
petitioner to have raised a proper grievance on the GST portal help-desk and ought to have waited for the relevant Form to go live on the GST
portal instead of making illegal adjustment by use of the Form GSTR-3B of the transferor and the transferee company and mere shortage of
working capital cannot be an excuse to bypass the legal procedure laid down under the law. Further the high court was of the view that the stand
of the Respondent No. 2, for rejecting the claim of the petitioner in the wake of the admitted fact that the GST common portal was not online cannot be
justified. Therefore, the order dated 17-4-2023 was set aside with liberty to the Respondent No. 2 to pass fresh order taking into consideration
the objections of the petitioner and also affording it opportunity of hearing, strictly in accordance with law