9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 701 - HC - GSTRefund of unutilized Input Tax Credit pertaining to compensation cess - Levy of compensation cess on imported Coal by virtue of Reverse Charge Mechanism - Allegation that procedure prescribed for availment of refund, not followed - petitioner stated that if the said resolution comments had been communicated to the petitioner, the petitioner would have followed the said procedure and would have re-submitted its application for refund - financial year 2017-18 and 2018-19 - HELD THAT - Admittedly, neither the date of communication of resolution comments nor the mode of communication of the resolution comments is mentioned in the counter affidavit although a specific plea was raised by the petitioner in the writ petition that the petitioner did not receive any response to the complaint in help-desk of GSTN portal on 04.03.2019 for which the petitioner was allotted ticket no. 201903045258658 and also to the representation dated 14.03.2019 (Annexure-10) and subsequent communications. There is no dispute that the last date for submission of refund application was 31.03.2019 and as per para 8 of the counter-affidavit filed by the Respondent nos. 1 to 4, the ticket allotted to the petitioner was closed on 25.03.2019 with the aforesaid resolution comments quoted in the said counter affidavit. This court is of the considered view that mere resolution comment is not sufficient, it was also required to be communicated to the petitioner so that the petitioner could have complied with the directions issued in the resolution comments in order to claim its refund. It is not in dispute that if the petitioner could adhere to the directions mentioned in the resolution comment, the petitioner could have filed the application for refund of compensation cess for the periods involved in this case i.e 2017-18 and also for 2018-19. This court is of the considered view that the petitioner cannot be made to suffer on account of laches on the part of the respondents in not communicating the resolution comment to the petitioner and accordingly this is a fit case for exercise of power under Article 226 of the Constitution of India for the redressal of the grievance of the petitioner which the petitioner has suffered due to non-communication of the resolution comment. Whether the respondents, having made a resolution comment in connection with complaint in help-desk of GSTN portal on 04.03.2019 (for which the petitioner was allocated ticket no. 201903045258658) asking the petitioner to apply afresh, can the petitioner be deprived of such opportunity to apply afresh by not communicating the resolution comment to the petitioner? - HELD THAT - The said resolution was not communicated to the petitioner and accordingly this court has already held above that the petitioner cannot suffer due to non-communication of the resolution comment. Further the relief which can be given to the petitioner is that the petitioner be granted some time to adhere to the directions mentioned in the resolution comment which has been communicated to the petitioner for the first time only through the counter affidavit filed by the Respondent nos. 1 to 4 and there is no question of giving any relaxation to the procedure required under law to file application for refund of compensation cess for the periods involved in the present case considering the legal position that Input Tax Credit (ITC) is a form of concession and whenever concession is given by statute or notification, the conditions thereof are to be strictly complied in order to avail such concession. This Court finds that the Hon'ble Bombay High Court in the judgement reported in NELCO LIMITED VERSUS THE UNION OF INDIA, THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THE STATE OF MAHARASHTRA, THE GOODS AND SERVICES TAX COUNCIL, THE COMMISSIONER OF STATE TAX 2020 (3) TMI 1087 - BOMBAY HIGH COURT had entertained the plea of the petitioner regarding no response to communication regarding grievance of the petitioner, but the same was rejected considering the peculiar facts of the case. There is no doubt that the validity of Rule 117 of the Rules has been upheld and the resolution of technical difficulty by granting further concession as per Rule 117(1A) was also considered and clearly held that no direction could be issued to the respondents in the facts of the said case to treat the case of the petitioner as falling within the ambit of Rule 117 (1A) as the existence of technical difficulty was not found when logged on to the common portal and this was also communicated to the petitioner - The said judgement also does not apply to the present case particularly in view of the fact that the grievance raised by the petitioner was duly considered and responded to by the department favorably, but the same was never communicated to the petitioner. In the present case, the validity of Rule 117 of Central Goods and Services Tax Rules is not under challenge and the entire case rests on the prejudice caused to the petitioner due to non- communication of resolution comment to the petitioner - As a cumulative effect of the aforesaid findings of non- communication of resolution comment to the petitioner, which has been communicated to the petitioner for the first time through the counter affidavit filed by the respondent no. 4, the petitioner is held to be entitled to take steps in compliance of the directions contained in the resolution comment quoted above. Consequently, the respondents are directed either to open GSTN portal enabling the petitioner to file its application for refund in GST RFD-01 or to manually accept the application for refund of the petitioner pertaining to the period 2017-18 and 2018-19 in respect of its claim for refund of unutilized Input Tax Credit pertaining to compensation cess within a period of one month from the date of communication of this judgement. The respondents are directed to communicate the petitioner through e-mail as to whether they would open the GSTN portal or would accept the refund applications manually and upon such communication, the petitioner will be entitled to avail of the opportunity to file applications for refund of compensation cess for the financial years 2017-18 and 2018-19 within a period of 15 days from such communication. Petition allowed.
Issues Involved:
1. Whether the petitioner is entitled to a mandamus directing the respondents to open the GSTN Portal or manually accept the refund application for unutilized Input Tax Credit (ITC) pertaining to compensation cess for the periods 2017-18 and 2018-19. 2. Whether the petitioner followed the proper procedure for filing the refund application. 3. Whether the respondents communicated the resolution comments to the petitioner. 4. The validity of the rejection order issued by the respondents. Issue-wise Detailed Analysis: 1. Entitlement to Mandamus for Opening GSTN Portal or Manual Acceptance: The petitioner sought a mandamus to either open the GSTN Portal to file its refund application for unutilized ITC of compensation cess or to manually accept the refund application for the periods 2017-18 and 2018-19. The court found that the petitioner faced technical glitches while attempting to file the application online and had made several representations and complaints to the authorities without resolution. The court directed the respondents to either open the GSTN Portal or manually accept the refund application within one month from the date of communication of the judgment. 2. Procedure for Filing Refund Application: The respondents argued that the petitioner did not follow the proper procedure for filing the refund application, as the necessary fields in the application form were not completed. The court noted that the respondents claimed to have issued resolution comments to address the technical issues faced by the petitioner, but these comments were not communicated to the petitioner. The court held that the petitioner could not be penalized for this non-communication and should be given an opportunity to comply with the directions in the resolution comments. 3. Communication of Resolution Comments: The petitioner contended that it did not receive any communication or resolution comments from the respondents regarding the technical issues faced while filing the refund application. The court observed that the resolution comments mentioned in the respondents' counter-affidavit were not communicated to the petitioner. The court held that the petitioner should not suffer due to the respondents' failure to communicate the resolution comments and directed the respondents to inform the petitioner whether they would open the GSTN Portal or accept the refund applications manually. 4. Validity of the Rejection Order: The respondents argued that the petitioner's refund application was already rejected and the petitioner did not challenge the rejection order. The court clarified that the rejection order pertained to the refund of excess IGST for the financial year 2018-19 and was not related to the refund of compensation cess, which was the subject matter of the present case. The court did not address the petitioner's entitlement to the refund of compensation cess, leaving it to the authorities to decide in accordance with the law. Conclusion: The court allowed the writ petition, directing the respondents to either open the GSTN Portal or manually accept the refund applications for the periods 2017-18 and 2018-19. The court emphasized that it had not relaxed any procedural requirements for claiming the refund, except to the extent necessary due to the non-communication of the resolution comments. The authorities were instructed to process the refund applications in accordance with the law.
|
