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TMI Blog2024 (8) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of limitation and fresh refund application filed pursuant to the deficiency memo, would be considered as in continuation of first refund application. The impugned order dated 20.02.2020 passed by respondent no. 2 rejecting the application for refund filed by the petitioner on the ground of limitation is quashed and set aside and the refund application filed by the petitioner in Form GST RFD-01A as prescribed at the relevant point of time dated 17.09.2018 is restored for consideration of proper officer so as to pass fresh order on merits in accordance with law - petition allowed. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1 : Hiren J Trivedi (8808)., Tapan N PateL (9185). For the Respondent(s) No. 3 : Mr Raj Tanna, AGP. For the Respondent(s) No. 1 : Mr Ankit Shah (6371). For the Respondent(s) No. 2 : Mr Hirak Shah For Mr Nikunt K Raval (5558). ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. Hiren J. Trivedi for the petitioner, learned advocate Mr. Hirak Shah for learned advocate Mr. Nikunt Raval for respondent no. 2 and learned Assistant Government Pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice Tax Act, 2017 (For short CGST Act ). 8. It is the case of the petitioner that due to non availability of refund module on the common portal, vide Circular No. 24/24/2017-GST dated 21.12.2017, it was decided to permit the applications of refund claims manually in Form GST RFD-01 A on account of inverted duty structure and the said circular also clarified that Circular No.17/17/2017-GST dated 15.11.2017 shall also be applicable for processing refund application filed under inverted duty structure. 9. The petitioner therefore, filed GSTR-1 for July 2017 on 26.08.2017 and refund application for July-2017 on 17.09.2018 in Form GST RFD-01A which was accepted and the acknowledgment bearing ARN AC2407170192753 was generated. The petitioner thereafter filed GSTR-3B on 23.11.2017. 10. After filing the refund application online, the petitioner filed the refund application manually before the respondent no.3 Assistant Commissioner of State GST on 26.12.2018. 11. It is the case of the petitioner that in November, 2019 the petitioner came to know that the petitioner was supposed to file the refund before respondent no. 2 - Assistant Commissioner of Central GST Excise Division-II. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file the refund application. It was further submitted that the respondent authorities could not have referred to Circular No. 37/2018 to deny the legitimate refund claim of the petitioner as there is no denial that the petitioner is not eligible for refund for the IGST paid on Zero Rated Supply. 17. Learned advocate Mr. Trivedi referred to and relied upon the decision of this Court in case of M/s. LA-Gajjar Machineries Private Limited v. Union of India (Judgment dated 27.09.2023 in Special Civil Application No.15782 of 2021) wherein while relying on subsequent Circular No. 125/2019 and Notification no. 15/2021, it was held that refund application filed originally would be relevant for the purpose of considering the limitation for passing the refund order as provided under section 54 (3) read with explanation thereto of the Act for the relevant period. 18. On the other hand, learned advocate Mr. Hirak Shah for respondent authorities submitted that the refund application filed by the petitioner is prior to Circular No. 125/2019 dated 18.11.2019 which provides for mandatory filing of the refund application through GST portal only with effect from 26.09.2019 and it further provides tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), (3) and (4) of Rule 89 of the CGST Rules, the same cannot be rejected, relegating the taxpayer to file afresh. In any view of the matter, the period of processing the said application under Sub section (7) of Section 54 of the CGST Act, is required to be counted from the said date. 20. However, notwithstanding the fact that the application for refund is complete inasmuch as it is accompanied by the documents as specified in Sub-rule (2) of Rule 89 of the CGST Rules, the proper officer may withhold the processing of refund, if he is not completely satisfied that the same is refundable to the taxpayer. In such circumstances, where the proper officer requires to further verify the claim or is unable to process it on account of discrepancies noticed by him, he is required to issue notice in Form GST RFD-08 in terms of Sub-rule (5) of Rule 90 of the CGST Rules. * * * 22. It is clear from the deficiencies as mentioned that the proper officer had noticed certain discrepancies in the documents. In addition, he also required the petitioner to provide certain documents in order to verify its claims for refund. It is also apparent that some of the documents demanded were not relevant as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non est for the purposes of Section 54 of the CGST Act. It is erroneous to assume that the application, which is accompanied by the documents as specified under Rule 89 (2) of the Rules, is required to be treated as complete only after the taxpayer furnishes the clarification of further documents as may be required by the proper officer and that too from the date such clarification is issued. [11] In view of Notification No.15/2021 dated 18th May 2021, wherein the proviso is added in Rule 90 (3) of the CGST Rules, reads as under: Provided that the time period, from the date of filing of the refund claim in FORM GST RFD-01 till the date of communication of the deficiencies in FORM GST RFD-03 by the proper officer, shall be excluded from the period of two years as specified under sub-section (1) of Section 54, in respect of any such fresh refund claim filed by the applicant after rectification of the deficiencies, It is therefore clear that time period from the date of filing of the refund claim in Form GST RFD-01 till the date of communication of the deficiency in the Form of GST RFD-03 by the proper officer is required to be excluded from the period of two years, as specified in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he limitation for filing rectification application would therefore extend upto 17th February 2020 (22.01.2020 + 26 days = 17.02.2020). But the petitioner has filed the second rectified application on 13th February 2020 and applying the Notification No.15/2021, refund claim of the petitioner would be within the period of limitation. Therefore, as held by the Hon ble Bombay High Court in the case of National Internet Exchange of India (supra), in terms of Section 54 (1) of the CGST Act, the period of limitation would stop running notwithstanding that the proper officer required further documents or material to satisfy himself that the refund claimed was due to the petitioner. The Notification No.15/2021 dated 18th May 2021 is issued so that Rule 90 (3) of the CGST Rules operates in accordance with the provisions of Section 54 (1) of the CGST Act and therefore, the same is required to be applied to the facts of the case also. [14] In view of the foregoing discussion, this petition succeeds. The impugned order dated 9th November 2020 passed by the respondent No.4 The Joint Commissioner (Appeals) confirming the order dated 11th March 2020 passed by the Deputy Commissioner, Central GST, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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