2022 (3) TMI 1205 - HC - GST

Refund of amounts lying in the petitioner's electronic cash ledger - investigation is pending against large scale fraudulent availing of credit on the strength of fake and fictitious invoices - HELD THAT - As far as refund of any amount lying unutilised in the Electronic Liability Register is concerned, such refund is governed by Section 54 of the CGST Act, 2017 read with provisions of Chapter X of the CGST Rules, 2017. This is not a case where the amount has been attached in terms of Section 83 of the CGST Act, 2017 read with Rule 159 in Chapter XVIII of the CGST Rules, 2017 - If the payment was coerced to be paid into the Electronic Liability Register of the petitioner by obtaining a letter from the petitioner, it may be ingenious way of creating liquidity crunch to ensure such amount is not frittered away. Whether the payment was under compulsion or otherwise, cannot be decided in this summary proceeding. It is for the petitioner to work out the remedy under law for refund of the amount under Section 54 of the CGST Act, 2017 read with provisions of Chapter X of the CGST Rules, 2017. Even if the respondent has forced the petitioner's client to pay the tax directly into the petitioner's Electronic Liability Register, the amount has not been appropriated or debited towards tax, interest, penalty, late fee or any other amount. The amount is to be debited at a future date towards tax liability of the petitioner. Even, if the petitioner's client was asked to pay the amount into the aforesaid Electronic Liability Register, the amount has not been debited towards any tax liability or penalty under the Act. If the amount has to be refunded, it has to be refunded in accordance with provisions of the Act. Considering the fact that the respondent is investigating, the case, which commenced during the month of August-September, 2021, respondent is directed to complete investigation within a period within a period of 3 months from today and issue appropriate Show Cause Notice under Section 73 or 74 of CGST Act, 2017 - the amount lying in the Electronic Liability Register of the petitioner can be refunded only the manner in the law. It cannot be ordered to be refunded. It can however be utilised by the petitioner for discharging tax liability against future supplies to be made/effected by the petitioner provided of course prior to such supply, the tax to be paid by the petitioner is adjudicated and determined and appropriated in the proposed proceedings under Section 73/74 of the CGST Act, 2017, in which case, Section 79 of the CGST Act, 2017 can be pressed into service. Though, it is quite possible for the petitioner to establish that the letter was obtained from the petitioner under coercion to ensure that the petitioner's client to pay the amount into the aforesaid Electronic Liability Register, it is to be decided elsewhere and not here. As the amount has not been debited and since it has not been appropriated so far, there is no scope for granting any relief to the petitioner in this writ petition - petition dismissed.

Issues Involved:
1. Whether the petitioner is entitled to a mandamus for refund of amounts lying in the petitioner’s electronic cash ledger.
2. The legality of the actions taken by the respondent, including the freezing of the petitioner’s electronic ledger and the arrest of the petitioner’s proprietor.
3. The applicability and interpretation of Section 79 and Section 54 of the CGST Act, 2017.
4. The validity of the petitioner’s claim that the letter directing payment into the GSTN account was obtained under coercion.
5. The procedural requirements for recovery and refund under the CGST Act and Rules.

Detailed Analysis:

1. Entitlement to Mandamus for Refund:
The petitioner sought a mandamus to direct the respondent to refund ?88,17,754/- lying in the petitioner’s electronic ledger under Chapter IX of the CGST Rules, 2017. The court noted that the refund of any amount lying unutilized in the Electronic Liability Register is governed by Section 54 of the CGST Act, 2017, which allows a person to claim a refund of any tax and interest paid by making an application before the expiry of two years from the relevant date.

2. Legality of Respondent’s Actions:
The petitioner claimed that the freezing of the electronic ledger and the arrest of the proprietor were without authority and caused a liquidity crunch. The respondent defended the actions by stating that the petitioner had admitted to fraudulent activities involving fake GST invoices to avail input tax credit. The court noted that whether the amounts were directed to be paid under coercion or voluntarily is a disputed question of fact that cannot be decided in summary proceedings under Article 226 of the Constitution of India.

3. Applicability and Interpretation of Section 79 and Section 54:
The court highlighted that Section 79(1)(c) of the CGST Act allows the proper officer to recover amounts due by issuing a notice to any person holding money for the defaulter. However, the court found the invocation of Section 79(1)(c) premature as recovery under this section must be in accordance with Chapter XVIII of the CGST Rules, 2017. For refund claims, the petitioner must follow the procedure under Section 54 of the CGST Act, 2017, which includes making an application in the prescribed manner.

4. Validity of Coercion Claim:
The petitioner alleged that the letter directing payment into the GSTN account was obtained under coercion. The court acknowledged that if the payment was coerced, it could create a liquidity crunch to ensure the amount is not frittered away. However, the court stated that this issue could not be resolved in summary proceedings and must be addressed through the appropriate legal channels.

5. Procedural Requirements for Recovery and Refund:
The court emphasized that the proper procedure for recovery and refund must be followed as per the CGST Act and Rules. The court referred to various provisions, including Rule 85 and Rule 86 of the CGST Rules, which govern the maintenance and debit of the electronic liability register. The court also cited the Supreme Court’s guidelines in the case of Radhakrishnan Industries, which stressed the need for tangible material and proper procedure before ordering provisional attachment or recovery.

Conclusion:
The court dismissed the writ petition, stating that the petitioner must seek a refund under Section 54 of the CGST Act, 2017, and follow the prescribed procedures. The respondent was directed to complete the investigation and issue a proper Show Cause Notice within three months. The petitioner was granted liberty to reply to the Show Cause Notice and seek refund in accordance with the law. The court noted that any refund would be subject to the final outcome of the show cause proceedings and in accordance with Section 54 of the CGST Act read with Chapter X of the CGST Rules.

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