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2024 (6) TMI 834 - HC - GSTDeclining to consider the applications for refund of GST for the financial years 2017-2018, 2018-2019 2020-2021 - application form i.e. RFD-01 not filed - petitioner not registered during the relevant period - manual application filed - HELD THAT - The Bombay High Court in LAXMI ORGANIC INDUSTRIES LTD. VERSUS UNION OF INDIA AND ORS. 2021 (12) TMI 63 - BOMBAY HIGH COURT as well as the Gujarat High Court in M/S. AYANA PHARMA LIMITED THROUGH ITS AUTHO. REPS. MULRAJ K. CHHEDA VERSUS UNION OF INDIA 2022 (5) TMI 860 - GUJARAT HIGH COURT have held that 97A of Central Goods and Services Tax Rules prevail and would have to be taken into account by the assessing authority and he cannot insist on only electronic filing of refund application. Petitioner not being a registered person and therefore not entitled to seek refund under Section 54 (3) - HELD THAT - Reference made to sub-section (1) of Section 54, which permits any person to make an application for refund of tax - the 5th respondent could not have refused to entertain the application of the petitioner for refund of unutilized input tax credit on the ground that the petitioner was not a registered person at the relevant point of time. The 5th respondent should also have taken note of Rule 41 which deals with instances of transfer of credit on amalgamation/ merger etc. of businesses/companies. The impugned order dt. 28.07.2022 passed by the 5th respondent is set aside and the matter is remitted to the 5th respondent for fresh consideration on merits within four weeks from the date of receipt of copy of this order - petition allowed by way of remand.
Issues involved:
The petitioner assails the order declining to consider applications for refund of GST for multiple financial years, citing reasons related to application form, registration under the Central Goods and Services Tax Act, and mode of filing refund applications. Refund Application Process: The petitioner informed the respondent about its GST registration and the transfer of eligible ITC, seeking to file refund applications under the "Inverted Duty Structure" for the relevant financial years. Despite being unable to file electronically due to registration timing, the petitioner submitted manual applications through separate emails, requesting consideration. Legality of Manual Applications: The Court found that the petitioner's reasons for manual filing were valid, as Rule 97A of the Central Goods and Services Tax Rules permits manual applications, contrary to a circular mandating electronic filing. Emphasizing that circulars cannot override rules, the Court criticized the 5th respondent for rejecting manual applications based on the circular, emphasizing the legality of manual filing under Rule 97A. Precedents and Legal Standing: Citing judgments from the Bombay High Court and the Gujarat High Court, the Court highlighted the precedence of Rule 97A in allowing manual filing of refund applications, emphasizing that assessing authorities cannot insist on electronic filing only, thereby supporting the petitioner's stance on the mode of application submission. Registration Requirement for Refund: Regarding the petitioner's registration status, the Court referred to Section 54(1) permitting any person to apply for a refund of tax, emphasizing that the petitioner's registration status at a specific time should not hinder its eligibility for seeking a refund. Additionally, the Court noted Rule 41 concerning credit transfer in cases of amalgamation or merger, which the 5th respondent failed to consider. Judgment and Remittance: Consequently, the Court allowed the writ petition, setting aside the impugned order and remitting the matter to the 5th respondent for fresh consideration within a specified timeline. The 5th respondent was directed to pay costs to the petitioner, and pending applications were disposed of accordingly.
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