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TMI Blog2024 (9) TMI 1582X X X X Extracts X X X X X X X X Extracts X X X X ..... s, as projected in the writ petition, are that the petitioner is a partnership concern engaged in the business of manufacturing of garments under the name and style of M/s Hallmark and is registered under the Central Goods and Services Tax Act, 2017. It is averred that the petitioner concern also transact outside the State by selling the products manufactured by it and every sale made outside the state falls under the category of outward supply and the output tax is charged. In the event of return of the goods, if any, the tax in the shape of GST already deposited, is adjusted in the Tax Liability of the subsequent months. Further, in case on the date of filing of the final return, if any excess deposit of tax is there, a refund of the tax paid-in-excess is claimed. 3. The case of the petitioner concern is that during the months of January, February, March and July, 2018 the goods returned by the customers exceeded the outward supply though the output tax on those returned goods had already been charged by the J&K Goods and Services Tax Department. Since the tax in the shape of GST had already been deposited on those returned goods, the same was to be adjusted as Tax Liability in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for issuance of personal hearing in case the tax payer was issued deficiency memo. Further, sub-rule (3) of Rule 90 of the CGST Rules only provides for communication of deficiencies in FORM GST RFD-03. 8. Heard learned counsel appearing for the respective parties, considered their rival contentions and also perused the writ file. 9. Admittedly, neither during arguments nor in the objections the respondents have nowhere denied or disputed as regards the claim of excess deposit of tax by the petitioner concern during the months of January, February, March and July, 2018. The respondents have also not disputed the amount of tax paid-in-excess to the tune of Rs.2,91,650/-, rather respondent No.2 vide deficiency memo dated 15.10.2020 had rejected the application of petitioner concern for refund of GST only on the ground of limitation under Section 54 of Central Goods and Services Tax Act, 2017 (for short, CGST Act of 2017). 10. Therefore, before proceeding further, it would be appropriate to reproduce hereunder the relevant portion of Section 54 of CGST Act of 2017 from GST Manual, 12th Edition, Volume-1: "Refund of tax. 54. (1) Any person claiming refund of any tax and intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax payers file the tax return to calculate their tax liability. The respondents also in paragraph-2E of their objections have specifically averred that the last date of filing the refund application is two years from the due date of furnishing of return. The petitioner concern, in the present petition, claims that it filed the final GST return on 20.09.2018. Therefore, in terms of Section 54 of CGST Act of 2017, the application for refund of tax was to be filed before the expiry of two years from the relevant date, i.e., the application was to be filed by or before 19.09.2020. A perusal of annexure IV to the writ petition, i.e., Form-GST-RFD-01 reveals that the petitioner concern filed the application for refund of tax on 08.09.2020, i.e., well before the expiry of two years from the relevant date. 13. However, respondent No.2 issued deficiency memo under Reference No. No.ZZ0109200344454 dated 23.09.2020 mentioning that supporting documents had not been attached with the application dated 08.09.2020. Respondent No.2 also directed the petitioner concern to explain under what circumstance the excess payment had been made and advised the petitioner concern to file a fresh refund ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of respondent No.2, became barred by limitation. Respondent No.2 has also failed to show from which date the application of petitioner concern became barred by time and how respondent No.2 took the relevant date. 17. The annexure attached with the petition reveal that the second application for refund of GST was filed by the petitioner concern only on the advice of respondent No.2 so as to sustain its claim. Therefore, the time limit for refund of GST will be determined from the date the original application came to be filed by the petitioner concern and not from the date of follow-up application. The follow-up application, which came to be filed by the petitioner concern only on the advice of respondent No.2, was in continuation to the proceedings related to the original application, as such the time period to claim the refund of GST was required to be determined based on the original application and not the follow-up application. Therefore, the follow-up application cannot be said to be a new application, rather the same was in continuation to the original application as the proceedings in the first application had not come to an end. If the proceedings under the first appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emo, the same will not render the application by a taxpayer as non est. 29. If the application filed is not deficient in material particulars, it cannot be treated as non est. If it is accompanied by the "documentary evidences" as mentioned in Rule 89(2) of the Rules, it cannot be ignored for the purposes of limitation. The limitation would necessarily stop on filing the said application. This is not to say that the information disclosed may not warrant further clarification, however, that by itself cannot lead to the conclusion that the application is required to be treated as 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." 20. As regards the claim of petitioner concern that no opportunity of being heard was afforded to it by the respondents before rejecting its claim, the respondents in their objections have specifically averred that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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