Time Limit to apply refund not applicable in case GST was paid on services which were exempted

[Rachit Agarwal]

DELHI METRO RAIL CORPORATION LTD. VERSUS THE ADDITIONAL COMMISSIONER, CENTRAL GOODS AND SERVICES TAX APPEALS II & ORS - 2023 (9) TMI 1177 - DELHI HIGH COURT

Facts

3. The DMRC was engaged by respondent no. 3 (Surat Municipal Corporation) for preparation of a project report for the purpose of development of Metro Rail Project for the City of Surat, Gujarat. In terms of its engagement, the DMRC rendered services for the preparation of Detailed Project Report for the aforementioned project. And on 11.08.2017, raised an invoice of an amount of ₹19,04,520/- for the services rendered. The invoiced amount included Goods and Services Tax (GST) of ₹2,90,520/- computed at the rate of 18%.

4. Respondent no. 3 paid an amount of ₹16,14,000/- against the said invoice but did not pay the amount of GST as included in the said invoice. In order to ensure that there is no failure in complying with its statutory provisions, the DMRC deposited a sum of ₹2,90,520/- with the GST Authorities for the month of August, 2017 (under Form GSTR-3B).

Hon’ble Court Observations and Order

12. Article 265 of the Constitution of India proscribes any levy or collection of tax except by authority of law. Concededly, GST is not payable by the DMRC in respect of the service of preparation of Detailed Project Report for respondent no. 3. Thus, the amount of ₹2,90,520/- deposited by the DMRC on an erroneous belief that payment for services rendered by it were chargeable to tax, cannot be retained by the respondents.

13. It is well settled that GST is an indirect tax. The burden of such tax is inevitably borne by the final recipient. In the present case, respondent no. 3 would be liable to reimburse the GST chargeable on services availed by it. But since GST is not payable in respect of such services, respondent no. 3 has not paid the said amount.

14. The period of limitation for applying for a refund as prescribed under Section 54 of the CGST Act, would not apply where GST is not chargeable and it is established an amount has been deposited under a mistake of law.