Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 15TH DAY OF JUNE 2023 / 25TH JYAISHTA, 1945 WP(C) NO. 25951 OF 2020 PETITIONER:
CHRIS MOTORS, 6/69A, KATTAKKAYAM BUILDING, PALAKATTUMALA, MARANGATTUPPALLI, KOTTAYAM - 686635, REPRESENTED BY ITS MANAGING PARTNER ALEXANDER JOSEPH.
BY ADVS.
AJI V.DEV ALAN PRIYADARSHI DEV KIRAN RAMACHANDRAN NAIR RESPONDENTS:
1 THE STATE TAX OFFICER, SGST DEPARTMENT, ETTUMANOOR-686631.
2 GOODS AND SERVICES TAX NETWORK, REPRESENTED BY ITS CHAIRMAN, EAST WING, 4TH FLOOR, WORK MARK-1, AEROCITY, NEW DELHI-110 037.
3 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO TAXES, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
BY ADVS.
GOVERNMENT PLEADER SHRI.P.R.SREEJITH, SC, GSTN SMT.RESMITHA R CHANDRAN-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.25951 OF 2020 2 ANU SIVARAMAN, J.
========================= W.P.(C) No.25951 of 2020 ========================= Dated this the 15th day of June, 2023
JUDGMENT This writ petition is filed seeking the following reliefs:
“(i) Issue a writ of mandamus or any other appropriate writ or order or direction quashing Ext.P7 & P7(a) orders of the 1st respondent.
(ii) Issue a writ of mandamus or any other appropriate writ or order directing the respondents to permit the petitioner to resubmit the application online or manually for refund and to consider the same within the time period stipulated under the CGST/SGST Acts/Rules.” 2.
Heard the learned counsel for the petitioner and the learned Government Pleader.
3.
It is submitted by the learned counsel for the petitioner that the petitioner is a partnership firm engaged in the business of electronic scooters within India. The petitioner
WP(C) No.25951 OF 2020 3 is a registered dealer under the Central Goods and Services Tax Act, 2017 with Ext.P1 registration certificate. It is submitted that during the months of April, May, June, September and December, 2018 and in the first three months of 2019, Input Tax Credit had accumulated due to Inverted Tax Structure to the petitioner. It is stated that the amounts of refund were available to be claimed by the petitioner.
4.
The petitioner submitted applications for refund in FORM GST RFD 01 for the period from April to September 2018 on 09.05.2020 and for the period from December 2018 to March, 2019 on 10.05.2020. E-mail communications showing the successful filing of the applications are produced as Exts.P2 and P2(a). It is stated that the petitioner had uploaded all the required documents. But he was issued with Exts.P3 and P3(a) 'Deficiency Memo', pointing out certain deficiencies in the application for refund. The petitioner was required to file a fresh refund application after rectification of the deficiencies pointed out.
WP(C) No.25951 OF 2020 4 5.
Fresh applications were submitted by the petitioner as evidenced by Exts.P4 and P4(a). The 1st respondent issued FORM GST RFD-02 in terms of Rule 90 (2) of the GST Rules for both the periods as evidenced by Exts.P5 and P5(a).
Thereafter, Exts.P6 and P6(a) notices were issued by the 1st respondent for rejection of the application for refund for both the periods, citing the reason that “online application do not contain all the required data”. The petitioner was required to appear before the officer on the very next day and only two days time was granted for submitting his objections to Exts.P6 and P6(a). Thereafter, the 1st respondent, by Exts.P7 and P7(a), rejected the refund in FORM GST RFD-06, but permitted the petitioner to submit proper rectified applications. It is submitted that though the petitioner attempted to resubmit the application, the application is not being accepted since the help desk has informed the petitioner that refund cannot be claimed for the same period for which FORM GST RFD-06 has already been issued.
WP(C) No.25951 OF 2020 5 6.
Learned counsel for the petitioner submits that the rejection of the applications once accepted by the respondents for want of proper documents is completely unjustified and that the petitioner had not been given any opportunity to rectify the defects, if any, in the applications. It is submitted that he is also disabled from making any further application for the same period, since the application for refund stands rejected.
7.
A counter affidavit has been placed on record by the respondents stating that the refund application has to be submitted online, and since the petitioner failed to submit the required documents through the online portal, the application stood rejected. It is stated that after primary verification, acknowledgment in FORM GST RFD-02 is to be issued and that Exts.P2 and P2(a) acknowledgments were issued after a primary verification only. It is stated that the application filed, after Exts.P3 and P3(a) 'Deficiency Memos' were issued, is treated as a fresh application and since the deficiencies
WP(C) No.25951 OF 2020 6 pointed out in Exts.P3 and P3(a) were not corrected by the petitioner, the fresh application could also not be considered.
It is stated in paragraph No.6 of the counter affidavit as follows;
“After acknowledging the resubmitted refund application, 3 things popup in the screen, issue RFD-06, RFD-05, issue RFD-08. In this case, the petitioner had failed to submit required data as pointed out in Exhibit P3 and P3(a).
Therefore this respondent had no other way than to issue Exhibit P7 and P7(a) orders. Petitioner very well knows that certain documents were not uploaded as demanded as per Exhibit P3 and Exhibit P3(a). Since the required documents were not uploaded this respondent was forced to issue Exhibit P7 and P7(a) order. Even though 2 days were mentioned in the notice, 15 days were given by the GSTN to the petitioner to file reply.” 8.
It is stated that it was only for speedy disposal of the application that two days notice was given to the petitioner. However, it is stated that order was passed only after two weeks. It is stated that since the application for refund of the petitioner was not accompanied by all required
WP(C) No.25951 OF 2020 7 documents, the same was rejected by Exts.P7 and P7(a).
Section 54 (1) provides that;
“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 SubSection (6) of Section 49, may claim such refund in such form and manner as may be prescribed” Section 54(4) states that;
“The application shall be accompanied by- (a) Such documentary evidence as may be prescribed to establish that a refund is due to the applicant; and (b) Such documentary or other evidence (including the documents referred to in Section 33) as the applicant may furnish to establish that the amount of tax and interest, if any, paid on such tax or any other amount paid in relation to which such refund is claimed was collected from or paid by him and the incidence of such tax and interest had not been passed on to any other person.
PROVIDED that where the amount claimed as refund is
WP(C) No.25951 OF 2020 8 less than two lakh rupees, it shall not be necessary for the applicant to furnish any documentary and other evidences but he may file a declaration, based on the documentary or other evidences available with him, certifying that the incidence of such tax and interest had not been passed on to any other person.
Section 54(5) states that;
“If, on receipt of any such application, the proper officer is satisfied that the whole or part of the amount claimed as refund is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund referred in section 57.
Rule 89 of the CGST Rules provides for an application of refund of tax, interest, penalty, fees or any other amount and provides that the application is to be made electronically in FORM GST RFD -01.
Rule 90 provides for an acknowledgment in FORM GST RFD -02 through the common portal electronically, indicating the date of filing of the claim for refund and the time period specified in Section 54(7) shall be counted from the date of such filing.
WP(C) No.25951 OF 2020 9 Rule 93 provides that where deficiencies are noticed, the proper officer shall communicate the deficiencies to the applicant in FORM GST PMT-03 requiring to file fresh refund application after rectification of the deficiencies.
Rule 92(3), with regard to the passing of orders sanctioning refund, provides that where the proper officer is satisfied, for the reasons to be recorded in writing, that the whole or any part of the amount claimed as refund is not admissible or is not payable to the applicant, he shall issue a notice in FORM GST RFD -08 to the applicant, requiring him to furnish a reply in FORM GST RFD -09 within a period of 15 days from the date of receipt of such notice and after considering the reply, make an order in FORM GST RFD-06 sanctioning the amount of refund in whole or part or rejecting the said refund claim and the said order shall be made available to the applicant electronically.
9.
In the instant case, the petitioner had been issued with an acknowledgment in FORM GST RFD-02. Where
WP(C) No.25951 OF 2020 10 deficiencies are noticed in the application, the Rules provide that the proper officer shall communicate the deficiencies to the applicant in FORM GST RFD-03 electronically and the petitioner would, in such circumstances, have been enabled to file a fresh refund application after rectification of the deficiencies. In the instant case, though the petitioner had been initially informed of deficiencies in the filing of his refund application, after the fresh refund application was filed by him as evidenced by Exts.P4 and P4(a), the petitioner was not issued with any intimation of any deficiency in his application in FORM GST RFD-03. Instead, he was issued with an acknowledgment in FORM GST RFD-02. Therefore, even though the petitioner has required by the officer to submit fresh applications for refund, the petitioner is disabled for making such applications because, technically, the application for refund submitted by the petitioner in respect of the relevant period stands rejected.
10.
Having considered the contentions advanced, I
WP(C) No.25951 OF 2020 11 notice that the procedure adopted by the respondents was not proper and was not in accordance with the provisions contained in Section 54 or the provisions of the GST Rules especially Rules 90 and 92 thereof. I am, therefore, of the opinion that the petitioner is entitled to an opportunity to submit a proper application for refund rectifying the defects, if any, in his refund application as evidenced by Exts.P4 and P4(a).
In the result, Exhibits P7 and P7(a) shall stand set aside. In case, a fresh application is submitted by the petitioner for refund in respect of the periods covered by Exts.P4 and P4(a) within a period of one month from the date of receipt of a copy of this judgment, the same shall be taken on record and an order in accordance with Section 54 shall be passed by the officer within a period of two months thereafter.
The respondents shall take necessary steps to enable the petitioner to make such fresh application with the required documents. The respondents shall take necessary steps to see
WP(C) No.25951 OF 2020 12 that the fresh application for refund submitted by the petitioner as directed above is accepted and in case there is any issue in electronic acceptance, the petitioner may be permitted to file the applications manually.
This writ petition is ordered accordingly.
Sd/- ANU SIVARAMAN JUDGE SSK/15/06
WP(C) No.25951 OF 2020 13 APPENDIX OF WP(C) 25951/2020 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 25.9.2017.
EXHIBIT P2 A TRUE COPY OF THE EMAIL COMMUNICATION OF SUCCESSFUL FILING OF THE APPLICATION AGAINST REFERENCE NUMBERS ARN AA320520002111G DATED 9.5.2020.
EXHIBIT P2(A) A TRUE COPY OF THE EMAIL COMMUNICATIONS OF SUCCESSFUL FILING OF THE APPLICATION AGAINST REFERENCE NUMBERS ARNAA3205200021661 DATED 10.5.2020.
EXHIBIT P3 A TRUE COPY OF FORM GST RFD-03 ISSUED AGAINST REFERENCE NUMBER ARNAA320520002111G DATED 12.5.2020.
EXHIBIT P3(A) A TRUE COPY OF FORM GST RFD 03 ISSUED AGAINST REFERENCE NUMBER ARN AA3205200021661 DATED 12.5.2020.
EXHIBIT P4 A TRUE COPY OF THE APPLICATION RECEIPT AGAINST REFERENCE NUMBER ARN AA320720011464U DATED 16.7.2020.
EXHIBIT P4(A) A TRUE COPY OF THE APPLICATION RECEIPT AGAINST REFERENCE NUMBER ARN AA320720011519N DATED 16.7.2020.
EXHIBIT P5 A TRUE COPY OF FORM GST RFD -02 FOR THE PERIOD APRIL TO SEPTEMBER 2018 DATED 16.7.2020.
EXHIBIT P5(A) A TRUE COPY OF FORM GST RFD-02 FOR THE PERIOD DECEMBER 2018 TO MARCH 2019 DATED 16.7.2020.
EXHIBIT P6 A TRUE COPY OF FORM GST RFD-08 FOR THE PERIOD APRIL TO SEPTEMBER 2018 DATED 20.8.2020.
EXHIBIT P6(A) A TRUE COPY OF FORM GST RFD -8 FOR THE PERIOD DECEMBER 2018 TO MARCH 2019 DATED 20.8.2020.
EXHIBIT P7 A TRUE COPY OF THE ORDER OF THE IST RESPONDENT REJECTING REFUND IN FORM GST RFD 06 ISSUED AGAINST REFERENCE NUMBERS ARN AA320720011464U DATED 7.9.2020.
EXHIBIT P7(A) A TRUE COPY OF THE ORDER OF THE IST RESPONDENT REJECTING REFUND IN FORM GST RFD 06 ISSUED AGAINST REFERENCE NUMBERS ARN AA320720011519N DATED 7.9.2020.
EXHIBIT P8 TRUE COPY OF THE E-MAIL COMMUNICATION WITH THE GSTN HELPDESK DATED 17.9.2020.