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TMI Blog2022 (5) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... assed in Appeal No. 10 for the assessment Year 2017-18; (a) Issue a writ, order or direction in the nature of MANDAMUS directing the respondent no.3 and respondent no.2 to refund the amount of security of Rs.5,60,000/- deposited in the form of Draft under Section 129 (1) of the U.P. Goods and Service Tax Act, 2017 due to the petitioner along with interest under section 56 in compliance of the appellate order dated 29.06.2018 passed in Appeal No. 14 for the assessment Year 2017-18; (b) Issue a writ, order or direction in the nature of MANDAMUS directing the respondent No. 3 to provide the temporary ID and password on the official website so as to enable the petitioner to file the ONLINE application required under Rule 89 of the U.P. Goods and Service Tax Rules, 2017; (b) Issue a writ, order or direction in the nature of MANDAMUS directing the respondent No. 3 to provide the temporary ID and password on the official website so as to enable the petitioner to file the ONLINE application required under Rule 89 of the U.P. Goods and Service Tax Rules, 2017; (c) Issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner informing as under :- 8. The petitioner again submitted an application dated 01.06.2021 before the respondent no.3. In paragraphs 4, 5 and 6 of the application dated 01.06.2021, the petitioner has stated as under :- 9. Thereafter, the respondent no.3 sent a letter no.58, dated 16.07.2021 to the petitioner stating as under :- 10. The petitioner again submitted an applications dated 27.07.2021 and 14.02.2022 before the respondent no.3 and the Joint Commissioner IT Division, Commercial Tax/State Tax, Gomti Nagar, Lucknow as eighth reminder in which the petitioner again mentioned that the respondent no.3 has deposited the draft submitted by him by making at his own a temporary ID and, therefore, it may be guided as to how the amount would be refunded to the petitioner pursuant to the appellate order. Since nothing was done by the respondents, therefore, the petitioner has filed the present writ petitions. 11. On 28.03.2022, this Court passed the following order:- "Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. A sum of Rs. 04,70,400/- deposited by the petitioner through bank draft pursuant to the order of the respondent no.2 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llan through which bank draft was deposited. It is only thereafter, the respondent no.3 has intimated to the petitioner that by letter dated 27.01.2021 the aforesaid bank draft was deposited in the name of Alok Dharnidhar Mishra on Temporary-ID. Again petitioner wrote several letters to the respondents to provide password so that the petitioner may generate A.R.N. for R.F.D.-01. In response to it, the respondent no.3 sent a letter to the petitioner dated 16.07.2021 in which he mentioned, as under:- Again the petitioner has moved several applications before the respondent no.3 including the applications dated 27.07.2021 and 14.02.2022 requesting for password and also to guide how his amount shall be refunded. However, nothing has been done by the respondents so far, as evident from the instructions dated 07.03.2022 produced today by the learned Standing Counsel which further shows that the respondents have attempted to mislead the Court and very conveniently suppressed the facts aforementioned. Under the circumstances, we direct the respondent no.1 to file counter affidavit by means of his personal affidavit and show cause that why exemplary cost be not imposed. Put up as a fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter of the Additional Commissioner dated 06.04.202 and at pages 8 and 9 are two letters, both dated 31.03.2022 (one relating to Writ-Tax No.419 of 2022 and the other relating to Writ-Tax No.424 of 2022), which is said to have been signed by the counsel at Jhansi. 16. As per reliefs sought in the writ petitions, the petitioner has prayed for refund of the amount and grant of interest. Under the circumstances, learned counsel for the petitioner has now pressed for the relief for grant of interest and, therefore, this Court heard learned counsels for the parties and passed the order dated 21.04.2022, as under :- "1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. High handedness, abuse of power and harassment of dealers by the respondents are evident on record and also reflected from the orders passed by this Court in the leading petition, being Writ-Tax No.424 of 2022 as well as the orders dated 28.03.2022 and 04.04.2022 passed in the connected Writ-Tax No.419 of 2022. 3. From the orders dated 28.03.2022, it is evident that despite the petitioner succeeded in appeal, the respondents, on one pretext or the other, and also on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es faced by him. 16. That due to technical glitches, the temporary I.D. of the petitioner was not available at the end of proper officer's login as it was at development stage of GST Portal and hence it was not possible to provide the password to the petitioner from the proper officer's end. 17. That when the entire problem came into knowledge of the deponent, she took it up on top priority with GSTN and after continuous efforts with CEO of GSTN, it was possible to activate the temporary I.D. at the login of the proper officer to provide password 18. That after receiving the password, the online refund application in form RFD-01 was filed by the petitioner on 31.03.2022. A true copy of RFD-01 filed by the petitioner is being appended herewith and marked as Annexure-9 to this affidavit. 19. That the abovementioned application RFD-01 was disposed and refund was sanctioned in Form RFD-06 within the time period specified under Section 56 of the CGST/UPGST Act, 2017 hence liability to pay interest does not arise. True copy of the Refund Sanction Order ic. RFD-06 is being appended herewith and marked as Annexure-10 to this affidavit. 20. That as per Section 54 of CGST/U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in as it was at development stage of GST Portal and hence it was not possible to provide the password to the petitioner from the proper officer's end. Thus, facts sufficiently establish that the petitioner was entitled for refund in terms of the order for refund passed by the First Appellate Authority dated 30.06.2018 and he applied for refund on 09.07.2018 but the respondents deliberately did not refund the amount on one pretext or the other. There was no fault on the part of the petitioner asking the respondents to refund the deposited amount in terms of the order of the First Appellate Authority dated 30.06.2018. It is only when this court passed the order dated 28.03.2022, the respondents awoke and allowed the petitioner also to submit Form RFD- 01A. Thus, online RFD-01A filed by the petitioner as required by the respondents, relate back to his refund application dated 09.07.2018 whereas the refund has been sanctioned by the respondents to the petitioner on 31.03.2022 and it was paid on 04.04.2022 but without interest. The letter dated 31.03.2022 was procured by the respondents from the local counsel of the petitioner at the time of sanctioning of the refund i.e. on 31.03.2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Government on the recommendations of the Council: PROVIDED FURTHER that no refund of unutilised input tax credit shall be allowed in cases where the goods exported out of India are subjected to export duty: PROVIDED ALSO that no refund of input tax credit shall be allowed, if the supplier of goods or services or both avails of drawback in respect of central tax or claims refund of the integrated tax paid on such supplies. (4) The application shall be accompanied by- (a) such documentary evidence as may be prescribed to establish that a refund is due to the applicant; and (b) such documentary or other evidence (including the documents referred to in section 33) as the applicant may furnish to establish that the amount of tax and interest, if any, paid on such tax or any other amount paid in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such tax and interest had not been passed on to any other person: PROVIDED that where the amount claimed as refund is less than two lakh rupees, it shall not be necessary for the applicant to furnish any documentary and other evidences but he may file a declaration, based on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or in any other provisions of this Act or the rules made thereunder or in any other law for the time being in force, no refund shall be made except in accordance with the provisions of sub-section (8). (10) Where any refund is due under sub-section (3) to a registered person who has defaulted in furnishing any return or who is required to pay any tax, interest or penalty, which has not been stayed by any court, Tribunal or Appellate Authority by the specified date, the proper officer may- (a) withhold payment of refund due until the said person has furnished the return or paid the tax, interest or penalty, as the case may be; (b) deduct from the refund due, any tax, interest, penalty, fee or any other amount which the taxable person is liable to pay but which remains unpaid under this Act or under the existing law. Explanation.--For the purposes of this sub-section, the expression "specified date" shall mean the last date for filing an appeal under this Act. (11) Where an order giving rise to a refund is the subject matter of an appeal or further proceedings or where any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the return relating to such deemed exports is furnished; (c) in the case of services exported out of India where a refund of tax paid is available in respect of services themselves or, as the case may be, the inputs or input services used in such services, the date of-- (i) receipt of payment in convertible foreign exchange 3 "or in Indian rupees wherever permitted by the Reserve Bank of India", where the supply of services had been completed prior to the receipt of such payment; or (ii) issue of invoice, where payment for the services had been received in advance prior to the date of issue of the invoice; (d) in case where the tax becomes refundable as a consequence of judgment, decree, order or direction of the Appellate Authority, Appellate Tribunal or any court, the date of communication of such judgment, decree, order or direction; (e) in the case of refund of unutilised input tax credit under clause (ii) of the first proviso to sub-section (3), the due date for furnishing of return under section 39 for the period in which such claim for refund arises; (f) in the case where tax is paid provisionally under this Act or the rules made thereunder, the date of adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h ledger in accordance with the provisions of sub-section (6) of section 49 may be made through the return furnished for the relevant tax period in FORM GSTR- 3 or FORM GSTR-4 or FORM GSTR-7, as the case may be: PROVIDED FURTHER that in respect of supplies to a Special Economic Zone unit or a Special Economic Zone developer, the application for refund shall be filed by the - (a) supplier of goods after such goods have been admitted in full in the Special Economic Zone for authorised operations, as endorsed by the specified officer of the Zone; (b) supplier of services along with such evidence regarding receipt of services for authorised operations as endorsed by the specified officer of the Zone: PROVIDED ALSO that in respect of supplies regarded as deemed exports, the application may be filed by, - (a) the recipient of deemed export supplies; or (b) the supplier of deemed export supplies in cases where the recipient does not avail of input tax credit on such supplies and furnishes an undertaking to the effect that the supplier may claim the refund: PROVIDED ALSO that refund of any amount, after adjusting the tax payable by the applicant out of the advance tax deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the invoices received and issued during a tax period in a case where the claim pertains to refund of any unutilised input tax credit under sub-section (3) of section 54 where the credit has accumulated on account of the rate of tax on the inputs being higher than the rate of tax on output supplies, other than nilrated or fully exempt supplies; (i) the reference number of the final assessment order and a copy of the said order in a case where the refund arises on account of the finalisation of provisional assessment; (j) a statement showing the details of transactions considered as intra- State supply but which is subsequently held to be inter-State supply; (k) a statement showing the details of the amount of claim on account of excess payment of tax; (l) a declaration to the effect that the incidence of tax, interest or any other amount claimed as refund has not been passed on to any other person, in a case where the amount of refund claimed does not exceed two lakh rupees: PROVIDED that a declaration is not required to be furnished in respect of the cases covered under clause (a) or clause (b) or clause (c) or clause (d) or clause (f) of sub-section (8) of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without payment of tax under bond or letter of undertaking, calculated in the following manner, namely:- Zero-rated supply of services is the aggregate of the payments received during the relevant period for zero-rated supply of services and zero-rated supply of services where supply has been completed for which payment had been received in advance in any period prior to the relevant period reduced by advances received for zero-rated supply of services for which the supply of services has not been completed during the relevant period; (E) "Adjusted Total Turnover" means the sum total of the value of- (a) the turnover in a State or a Union territory, as defined under clause (112) of section 2, excluding the turnover of services; and (b) the turnover of zero-rated supply of services determined in terms of clause (D) above and non-zero-rated supply of services, excluding- (i) the value of exempt supplies other than zero-rated supplies; and (ii) the turnover of supplies in respect of which refund is claimed under sub-rule (4A) or sub-rule (4B) or both, if any, during the relevant period.' (F) "Relevant period" means the period for which the claim has been filed. (4A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod other than the input tax credit availed for which refund is claimed under sub-rules (4A) or (4B) or both; and (b) "Adjusted Total turnover" and "relevant period" shall have the same meaning as assigned to them in sub-rule (4)." 21. As per provisions of Section 54(1) of the CGST Act, 2017, the petitioner could claim refund by making an application before the expiry of two years from the relevant date in such form and manner as may be prescribed. The relevant date for the purposes of the present case is referable to Explanation 2(d) appended to Section 54 which provides that in case where the tax becomes refundable as a consequence of judgment, decree, order or direction of the Appellate Authority, Appellate Tribunal or any court, the date of communication of such judgment, decree, order or direction. 22. It is undisputed that the proper office while accepting the deposit of tax and penalty by bank-draft from the petitioner for Rs.4,70,400/- for release of goods pursuant to the order dated 30.12.2017 under Section 129 (3) of the U.P. Goods and Service Tax Act, 2017, mistakenly shown the deposit under the aforesaid Act instead of IGST Act and further committed a manifest err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents were bound to refund the amount along with interest under Section 56 of the CGST/ U.P. GST Act, 2017 but on one hand, they arbitrarily withheld the refund of the petitioner for more than 33 months and on the other hand, they again arbitrarily acted and have not granted interest to the petitioner on the delayed refund of the amount in question. The principal amount deposited was refunded by the respondents to the petitioner only on 04.04.2022. Thus, the petitioner is entitled for interest under Section 56 of the Act, 2017. 24. There is another aspect of the matter, so far as the payment of interest by the respondents to the petitioner is concerned. As per refund sanctioned order dated 31.03.2022 (Annexure-10 to the personal affidavit of the respondent No.1 dated 25.04.2022), the reason for granting refund has been recorded as under: "With reference to order 17/2018 dated 30-06-2018 issued by Additional Commissioner, Grade-2 (Appeal), second, commercial tax, Jhansi zone, Jhansi." 25. The communication of the aforesaid appellate order dated 30.06.2018 was made to the respondents on 09.07.2018 which fact could not be disputed by the respondents. Thus, the relevant date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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