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TMI Blog2024 (12) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... is Hon'ble Court may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ or order directing the respondents to forthwith enable rectification of error in the returns in Form GSTR-3B filed for the months of January and March 2023 in accordance with Section 39 (9) of the GST Acts; B. This Hon'ble Court may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ or order directing the respondents to forthwith grant refund of the excess payment of tax that the petitioner was forced to pay a result of non-availability of functionality to rectify any error or omission in the returns filed for the months of January and March 2023 along with statutory interest on such refund; C. This Hon'ble Court may be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other writ or order quashing and setting aside impugned order dated 05.12.2023 (Annexed at Annexure J) rejecting the refund claim of the petitioner." 5. Brief facts of the case are as under: 5.1 The petitioner is a proprietary concern engaged in the business of trading in Cotton. The petitioner is duly registered under the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reply Email dated 23.09.2023 from the GST Helpdesk that option to revise the return in Form GSTR-3B which has already been filed is not available and that adjustment, if any, is permissible only in the return of subsequent month. The petitioner therefore, again filed refund application under "Any other category" on 09.10.2023. 5.8 The respondent issued the show-cause notice dated 24.11.2023 proposing to reject the refund on the ground that in the facts of the case of the petitioner, it cannot be said that the petitioner has made excess payment of tax. 5.9 The petitioner filed reply to the show-cause notice contending that the grievance was raised for allowing rectification of return, however, no solution was provided and accordingly, the petitioner is entitled to the refund of excess payment of tax as per the documents furnished by the petitioner before the respondent-authority. 5.10 However, the respondent No. 3-Assistant Commissioner, CGST-Division, Surendranagar, by order dated 05.12.2023 rejected the refund application on the ground that there is no excess payment of tax. Being aggrieved, the petitioner has preferred this petition with the aforesaid prayers. 6. Learned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring an appeal under section 107 of the GST Act to challenge the impugned order dated 05.12.2023 passed by the respondent No. 3 rejecting the refund application. 7.1 It was further submitted that the petitioner has erroneously misinterpreted the provision of Circular No. 26/2017 dated 29.12.2017 to the effect that rectification of refund in subsequent months would not permit inserting negative entries and if adjustment is not feasible, refund may be claimed. However, the circular in fact provides for refund only if no adjustment is feasible in the output tax liability or input tax credit, whereas in the facts of the case, liability incurred by the petitioner on reverse charge basis for the month of January 2023 has not been adjusted by way of payment in the electronic cash ledger which cannot be said to be an excess the payment of tax. Reliance was placed on the following averments made in the affidavit-in-reply filed on behalf of the respondent No. 3 "11. I submit that the interpretation of the Petitioner in respect of the Circular No. 26/26/2017-GST dated 29-12-2017 is erroneous. It is the case of the Petitioner that the circular provides that while rectification of returns in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case is also not a case of denial of input tax credit, but postponement of the same. I submit that it was the Petitioner who, rather than taking Input Tax Credit by paying tax on reverse charge basis, opted to discharge the entire output tax liability by cash payment. Thus, no refund arises as there is no excess payment of duty but only accumulation in ITC due to late discharge of liability on reverse charge basis on inward supply which is now sought as refund in cash. However, as held by the Hon'ble Supreme Court, there is no express provision permitting swapping of entries effected in the electronic cash ledger vis-a-vis the electronic credit ledger or vice versa." 7.2 It was further submitted that in view of the above averments, the petition may not be entertained and the petitioner may be relegated to avail alternative efficacious remedy on merits. 8. Considering the submissions made by learned advocates for the respective parties, on perusal of the Form GSTR-3B and the returns for the month of January and March 2023, it is apparent that the petitioner has, in order to rectify the error committed while filing the return in Form GSTR-3B for the month of January 2023 by not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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