9911796707
TMI Blog2023 (3) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... set it is relevant to state that this Court has entertained the present petition solely for the reason that the petitioner does not have an equally efficacious remedy of an appeal before the Goods and Services Tax Tribunal because the same has not been constituted as yet. 3. It is the petitioner's case that the said order is, ex facie, beyond jurisdiction inasmuch as it seeks to deny the petitioner refund of integrated tax paid in respect of services provided to an entity located overseas, on the ground that the petitioner is an 'intermediary'; therefore, the place of services performed by the petitioner is necessarily to be considered as located in India. The petitioner submits that denial of refund on this ground was not available to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a distinct person in accordance of Explanation 1 in Section 8" of the GST Act. In view of the above, the Appellate Authority accepted that the petitioner and its foreign clients were not establishments of a distinct person but were separate tax entities; therefore, condition (v) of Section 2(6) of the CGST Act was satisfied. Notwithstanding that the ground on which the Adjudicating Authority had rejected the petitioner's claim for refund was found to be untenable, the Appellate Authority proceeded to deny the refund on an absolutely new ground that the petitioner was an intermediary under Section 2(13) of the Integrated Goods and Services Tax Act, 2017 (IGST Act). Therefore, the services rendered by the petitioner did not qualify to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Appellate Authority can assume the power to pass any orders in terms of the second proviso to Section 107(11) of the CGST Act for denying the entitlement of refund and directing recovery of the same. He earnestly contended that in the present case, the refund has not been granted and therefore, the Appellate Authority did not have any authority to pass any orders in terms of the second proviso to Section 107(11) of the CGST Act. 10. Mr Amritanshu, learned counsel appearing for the respondents countered the aforesaid contentions. He submitted that the powers available to the Appellate Authority to modify the order appealed against would include a power to adjudicate afresh any issues that have any bearing on the question of payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has the authority to expand the scope of controversy by introducing a fresh ground for denial of refund. We also do not consider it apposite that the matter be decided in a piecemeal fashion. 16. It is not disputed that the petitioner was not given an opportunity to meet the case that it was not entitled to refund as the services provided by it was as an intermediary. It is, thus, clear that the impugned order has been passed in violation of the principles of natural justice. 17. In view of the above, we consider it apposite to set aside the impugned order and remand the matter to the Appellate Authority to decide the petitioner's appeal afresh, including the question as to whether the Appellate Authority has the jurisdiction to set up ..... X X X X Extracts X X X X X X X X Extracts X X X X
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