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TMI Blog2022 (10) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... it conducts business. For the ease of distinguishing and determining the 'Location of Supplier' [LOS] and the 'Place of Supply' [POS], the petitioner tagged all the branches to the respective States from where the services are provided and pay the taxes from the appropriate State. (a) It is said that during system configuration at the time of implementation of GST, few business premises located in Telangana State were erroneously tagged to Andhra Pradesh. Thus, the services provided for such office premises in Telangana were alleged to be erroneously mapped as provided in Andhra Pradesh, instead of in Telangana State. As a result of incorrect mapping of few Telangana office premises to Andhra Pradesh, the source system of the petitioner bank wrongly considered the State of Andhra Pradesh as 'LOS' instead of Telangana State, for the services rendered for such premises. However, the Place of Supply was correctly identified as Telangana. It is said that IGST was paid from the AP GST registration on services rendered from such branches in Telangana instead of CGST + SGST from the Telangana registration. (b) It is also averred that the services provided from the business premises of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, disputing the averments made in the affidavit filed in support of the writ petition. It is stated that the claim for refund should be filed as per the procedure prescribed under the provisions of said sections and the entitlement for the refund is subject to the conditions and limitations prescribed under the said section. 4. Though, various grounds are raised, Sri Bharat Raichandrani, learned Counsel for the petitioners mainly submits that in view of the Circular dated 25.09.2021, issued by the Government of India, the authorities erred in rejecting the claim as time barred. He took us through Paras 2.1, 3.1, 3.2, 4.1 and 4.2 of the said Circular to contend that the application filed by them is not barred by limitation. 5. Sri Suresh Kumar Routhu, learned Senior Standing Counsel for the respondents submits that the provisions of Section 54 of CGST Act, prescribe a period of limitation for filing the claim for refund, and the said application has to be made within the said period. Since the impugned claim came to be made beyond the period of limitation i.e. beyond the period of two years, the authorities rightly rejected the same. Apart from that he would also submit that al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngfully paid as specified in section 77(1) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as "CGST Act") and section 19(1) of the Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as "IGST Act"). In order to clarify these issues and to ensure uniformity in the implementation of the provisions of law across the field formations, the Board, in exercise of its powers conferred by section 168(1) of the CGST Act, hereby clarifies the issues detailed hereunder: 2.1 Section 77 of the CGST Act, 2017 reads as follows: "77. Tax wrongfully collected and paid to Central Government or State Government - (1) A registered person who has paid the Central tax and State tax or, as the case may be, the Central tax and the Union territory tax on a transaction considered by him to be an intra-State supply, but which is subsequently held to be an inter-State supply, shall be refunded the amount of taxes so paid in such manner and subject to such conditions as may be prescribed. (2) A registered person who has paid integrated tax on a transaction considered by him to be an inter-State supply, but which is subsequently held to be an intra-State supply, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above mentioned situations, provided the taxpayer pays the required amount of tax in the correct head." 8. Similarly, Para-4 of the said Circular deals with relevant date for claiming refund under Section 77 of the CGST Act/Section 19 of the IGST Act, 2017, which reads as under:- "4.1. Section 77 of the CGST Act and Section 19 of the IGST Act, 2017 provide that in case a supply earlier considered by a taxpayer as intra-State or inter-State, is subsequently held as inter-State or intra-State respectively, the amount of central and state tax paid or integrated tax paid, as the case may be, on such supply shall be refunded in such manner and subject to such conditions as may be prescribed. In order to prescribe the manner and conditions for refund under Section 77 of the CGST Act and Section 19 of the IGST Act, sub-rule (1A) has been inserted after sub-rule (1) of rule 89 of the Central Goods and Services Tax Rules, 2017 (hereinafter referred to as "CGST Rules") vide notification No.35/2021-Central Tax dated 24.09.2021. The said sub-rule (1A) of rule 89 of CGST Rules, 2017 reads as follows: "(1A) Any person, claiming refund under section 77 of the Act of any tax paid by him, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Routhu, learned Senior Standing Counsel for the respondents. 10. It is also to be noted here that the impugned order was passed on 23.11.2020 and this Circular came to be issued on 25.09.2021 giving a clarification as to the date for claiming refund under Section 89 of the CGST Act, and Section 19 of the IGST Act, 2017. But the entire counter of the respondents was only in relation to Section 54 of the CGST Act, even the authority who passed the impugned order could not have considered the Circular issued by the Ministry of Finance in September, 2021, as the same was not issued by the date of the impugned order. 11. Since the issue involved relates to period of limitation in filing the refund application, coupled with the documents to be filed, it would be just and proper, in our view, to remand the matter back to the authority i.e. third respondent/Assistant Commissioner Central Tax, to deal with the refund application in the light of the Circular No.162/18/2021-GST dated 25.09.2021, issued more particularly with regard to the applicability of the Circular issued by the Government, and then pass orders in accordance with law. 12. With the above directions, the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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