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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 ..... etitioner concern dated 08.09.2020 was barred in terms of Section 54 of CGST Act of 2017, which leads to the conclusion that on 08.09.2020 the original application of petitioner concern for refund of GST was within time from the relevant date. However, the application dated 28.03.2020, which was filed on the asking of respondent No.2, was rejected by respondent No.2 only on the ground of limitation. Once the respondents had treated the original application dated 08.09.2020 as within time from the relevant date, then how the second application dated 28.09.2020, which was in continuation to the original application dated 08.09.2020 and was filed only on the advice of respondent No.2, became barred by limitation. A perusal of the objections filed by the respondents reveals that the respondents have miserably failed to justify their action in rejecting the claim of petitioner concern. It seems the objections have been filed only for the sake of objections and was a mere formality; the same seem to be evasive in nature. In the objections the respondents have failed to aver anything about the first application filed by the petitioner concern on 08.09.2020 - A perusal of the objections re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the subsequent months. However, the same was not done in respect of those returned goods. Since there was excess deposit of tax by the petitioner concern, therefore, on the date of filing of the final return a refund of the tax paid-in-excess was to be claimed. In the present case, the petitioner concern filed the final GST return on 20.09.2018. 4. The further case of petitioner is that in terms of Section 54 of the Goods and Services Act, 2017, the limitation to file the refund application is two years from the relevant date. The petitioner concern under Rule 89 of Goods and Service Tax Rules, 2017 filed the application under proper format to respondent No.2 for refund of the tax paid-in-advance on 08.09.2020, i.e., within the period of limitation of two years with all requisite documents. The refund calculated was at Rs.2,91,650/-. 5. It is averred that respondent No.2 on 23.09.2020 issued a deficiency memo (Form-GST-RFD-03) under Rule 90(3) thereby demanding supporting docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate 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 interest, if any, paid on such tax or any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed. Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 49, may claim such refund in the return furnished under section 39 in such manner as may be prescribed. 11. It would also be relevant to reproduce hereunder Rule 90 of Central Goods and Services Tax Rules, 2017: 90.(1) Where the application relates to a claim for refund from the electronic cash ledger, an acknowledgement in FORM GST RFD-02 shall be made available to the applicant through the common portal electronically, clearly indicating the date of filing of the claim for refund and the time period specified in sub-section (7) of section 54 shall be counted from such date of filing. (2) The application for refund, other than claim for refund from e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent 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 application after rectification of above deficiencies. 14. It is to be seen here that respondent No.2 in the deficiency memo dated 23.09.2020 had no where mentioned that the application was barred by limitation in terms of Section 54 of CGST Act of 2017; meaning thereby when the petitioner concern applied for refund of tax on 08.09.2020 the application for refund was certainly within time from the relevant date. Otherwise, the original application dated 08.09.2020 itself had to be dismissed as barred by time and no occasion had arisen for respondent No.2 to advice the petitioner concern to file fresh application along with supporting documents. Therefore, the first application dated 08.09.2020 was itself within time. Further, a perusal of application dated 08.09.2020 reveals that the petitioner concern had already annexed the supporting documents with the application, i.e., returns for January, February, March, June, July August, 2018 as well as certificate of CA. 15. Be that as it may, the petitioner concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 application had come to an end, then the second application cannot be taken to be in continuation of the first application. Further, the character or nature of the second application can in no way be said to be different from that of the original application, rather the same was part of the proceedings in continuation to the first application. Therefore, the claim of petitioner concern can in no way be said to be barred by limitation. 18. What is held by a Division Bench of the High Court of New Delhi in paragraph-25 of WP(C) 871/2022, decided on 09.08.2023, in case, titled as, National Internet Exchange of India vs Union of India ors., is relevant to reproduce hereunder: 25. As noted above, in terms of Section 54(1) of the CGST Act, an application is required to be made in the prescribed form and manner before two years from the relevant date. It is clear that the petitioner had complied with the said requirement inasmuch as it had filed an application for refund on 31.10.2019 in the form and manner as prescribed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing heard was afforded to it by the respondents before rejecting its claim, the respondents in their objections have specifically averred that in terms of Circular No.125/44/2019-GST dated 18.11.2019 the petitioner concern was not entitled for personal hearing. Thus, the respondents have themselves admitted that no opportunity of being heard was afforded to the petitioner concern before rejecting its claim for refund of tax paid-in-advance. Whereas, Rule-92(3) specifically provides that no application for refund shall be rejected without giving the applicant an opportunity of being heard. Therefore, on this score alone the impugned deficiency memo requires to be quashed. 21. Further, a perusal of the objections filed by the respondents reveals that the respondents have miserably failed to justify their action in rejecting the claim of petitioner concern. It seems the objections have been filed only for the sake of objections and was a mere formality; the same seem to be evasive in nature. In the objections the respondents have failed to aver anything about the first application filed by the petitioner concern on 08.09.2020. The objections only say that as per the GST portal the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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