M/S. Nspira Management Services Private Limited vs. Assistant/Deputy Commissioner Of Central Tax
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Cause title — parties, addresses and appearances
the Court made the following order: WRIT PETITION NO: 14905 OF 2024 Between: Nspira Management Services Private Limited, First Lane, Neliore, Andhra Pradesh- 524002 M/s. 16/11/667, Haranathpuram Represented by its CFO, Mr. K.Sambashiva Sastry, S/o. KVSR Krishna Sastry, Aged about 57 years, R/o. Madhapur, Hyderabad - 500 081 ...Petitioner
AND 1. Assistant/Deputy Commissioner Of Central Tax, Nellore- Division, Nellore-lll Range, D.No. 24-7-205/2, Plot No. 221, 12th Main Road, Magunta Layout, Nellore- 524 003
Union of India, Ministry of Finance, Represented by its Secretary, North Block, New Delhi - 110 001 ...Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order, or direction more particularly one in the nature of a Writ of Mandamus a) declaring impugned Defect Memo vide ref ZM3705240408732 dated 21.05.2024 issued by the Respondent No. 1 as being void, arbitrary, illegal, without juri iction, without authority of law and violative of the principles of natural justice apart from being violative of Articles 14, 19(1)(g) and 265 of the Constitution of India, and to consequently set aside the same. no. lA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave to the respondents to file counter affidavit. lA NO: 2 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave to file rejoinder in Writ Petition No. 14905 of 2024. PASUPULETl VENKATA PRASAD ; SRI VENNA HENIANTH Counsel for the Petitioner: SRI Counsel for the Respondent Nos.1 & 2 KUI\AAR(CENTRAL GOVERNMENT COUNSEL) made the following COMMON ORDER: The Court
I WP 18287 & 14905 2024 # 1 APHC010356602024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Juri iction) SMS [3529] FRIDAY, THE TWENTY SIXTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR WRIT PETITION Nos.18287 & 14905 OF 2024 Between: 1.M/S. NSPIRA MANAGEMENT SERVICES PRIVATE LIMITED,, FIRST LANE, 16/11/667. HARANATHPURAM, NELLORE, ANDHRA PRADESH- 524002 REPRESENTED BY ITS CFO, MR. K.^AMBASHIVA SASTRY, S/0. KVSR KRISHNA SASTRY, AGED ABOUT 57 YEARS, R/0. MADHAPUR, HYDERABAD - 500 081 ...PETITIONER AND 1.ASSISTANT/ DEPUTY COMMISSIONER OF CENTRAL TAX, NELLORE- DIVISION, NELLORE-LLL RANGE, D.NO. 24-7-205/2, PLOT NO. 221, 12TH MAIN ROAD MAGUNTA LAYOUT, NELLORE- 524 003 OF INDIA, MINISTRY OF FINANCE, REPRESENTED BY ITS SECRETARY, NORTH BLOCK, NEW DELHI - 110 001 2.UNION ...RESPONDENT(S):
I / WP 18287 & 14905 2024 ■4- 2 WRIT PETITION No.18287 of 2024 Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased tomay be pleased to issue a writ, order, or direction more particularly one in the nature of a Writ of Mandamus declaring ZL3705240408854 datedimpugned Defect Memo vide ref no. 21.05.2024 issued by the Respondent No. 1 as being void, arbitrary illegal, without juri iction, without authority of law and violative of the principles of natural justice apart from being violative of Articles 14, 19(1)(g) and 265 of the Constitution of India, and to consequently set aside the same and pass lA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to grant leave to the respondents to file counter affidavit and pass. lA NO: 2 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to grant leave to file rejoinder in Writ Petition No. 18287 of 2024 and pass Counsel for the Petitioner:
PASUPULETI VENKATA PRASAD Counsel for the Respondent(S): 1.VENNA HEMANTH KUMAR(CENTRAL GOVERNMENT COUNSEL) 2
I WP 18287 & 14905 _2024 ■ WRIT PETITION No.14905 of 2024 r Petition under Articie 226 of the Constitution of india praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to may be pleased to issue a writ, order, or direction more particularly one in the nature of a Writ of Mandamus a) declaring impugned Defect Memo vide ref no. ZM3705240408732 dated 21.05.2024 issued by the Respondent No. 1 as being void, arbitrary, illegal, withou juri iction, without authority of law and violative of ‘h® of natural justice apart from being violative of Articles 14,19( )(g) and 265 of the Constitution of India, and to consequently set aside the same and pass such lA NO: 1 OF 2025 that in the Petition under Section 151 CPC praying circumstances stated in the affidavit ffled in ^^^PP®^ of he be pleased to grant leave to the petition, the High Court may respondents to file counter affidavit and pass lA NO: 2 OF 2025 that in the under Section 151 CPC praying the affidavit filed in support of the be pleased may be pleased to grant Petition circumstances stated in oetition the High Court may Lve to file rejoinder in Writ Petition No. 14905 of 2024 and pass Counsel for the Petitioner: 1 PASUPULETl VENKATA PRASAD Counsel for the Respondent(S): 1.... 2.VENNA HEMANTH KUMAR(CENTRAL GOVERNMENT COUNSEL)
I WP_18287 & 14905 _2024 -4^ HON’BLE SRI JUSTICE RAO RAGHUNANDAN RAO ‘ AND HON’BLE SRI JUSTICE T.C.D. SEKHAR WP Nos.18287 & 14905 OF 2024 COMMON ORDER:- (Per Hon'ble Sri Justice T.C.D. Sekhar) Since the issue involved in both the writ petitions is 1. one and the same, they are being disposed of by this common order. The petitioner is a company incorporated under the Companies Act 2013, having registered with the respondent department vide GSTN-37AAECN3984D1ZB. The petitioner inter alia engaged in management of educational institutions, educational consultancy besides providing the same, also engaged in providing hostel accommodation services to students of various educational institutions.
In the process of its business, the petitioner had taken residential dwellings on rent from the respective landlords to provide accommodation to the students. As the landlords had been charged tax on the invoices issued by them, the petitioner has been paying tax on the renting of residential 3. so as / i
f WP 18287 & 14905 _2024 of the petitioner that the services from the landlords fall under Entry - Central Tax dwelling services. It is the case received by the petitioner of the Exemption Notification No. 12 of 2017 No.12 (Rate) dated 28.06.2017 under Heading 9963 or 9972. As already paid tax to its landlords inasmuch as they stated the petitioner had been charging tax on the invoices. In view of the Exemption refund application dated Notification, the petitioner filed 01.05.2024 seeking to amount of tax refund , the period July. 2017 to January, 2020. Rs.11,49,32,214/- for the Similarly, for the period February. 2020 to June, 2022. refund 29.02.2024. Initially, the respondent application was filed on authorities issued defect memos informing the petitioner to dated 21.05.2024, furnish certain details. Later, by defect memos it was informed to the petitioner not fit for processing as submissions of refund application is already completed. Questioning the said memos, the above writ petitions were filed. that the refund applications are the time limit of two (02) years time period for contention of the counsel for the petitioner is that of eligibility of refund cannot be decided by issuance
The the question of defect memos as the same requires adjudication in accordance It is further procedure contemplated under law with the \ WP 18287 & 14905 _2024 contended that the respondent authorities have to issue show notice in Form RFD-08 and allow the petitioner to file reply in Form RFD-09 and to pass a speaking order in Form RFD-06 as per the procedure contemplated under Rule 92 (3) of COST Rules, 2017. He would further contend that in the absence of following the procedure under the said Rule, the impugned memos under challenge are liable to be interdicted by this Court. cause A counter affidavit is filed by the respondents contending that as per Circular No. 125/44/2019-GST, dated 18.11.2019 issued by CBIC once a deficiency memo has been issued, the refund application would not be further processed. It is further contended that as per Section 54 of CGST Act, 2017, an application claiming refund of any tax and interest has to be made within a period of two (02) years from the relevant date in such form and manner as may be prescribed. He would further contend'.that as per Notification No. 13/2022-Central Taxes, dated 05.07.2022 the period from the 1®' day of March, 2020 to 28*'' February, 2022 is excluded for computation period of limitation for filing refund application under Sections 54 or 55 of the Act. He would further contend that in view of the above application shall be submitted on or before 19.01.2024, but in the instant case the 5. /
f / !
WP_18287 & 14905_2024 ■( refund application was initially filed on 01.04.2024, which i beyond due date for filing refund claim and prayed to dismiss writ petition. IS the 6. On the other hand, the petitioner filed rejoinder inter dlia contending that the delay caused in filing the application is not deliberate and the same had occurred due to technical and procedural hurdles. It is further stated that since the respondent authorities did not raise the ground of limitation in the first memo, the same ought not to have been raised in the subsequent memos.
On over all consideration of the cases on hand, it is not in dispute that the petitioner filed application seeking to refund under Section 54 of the COST Act. It is the specific case of the petitioner that, though it is not under obligation to pay tax on renting of residential dwelling services as per Entry No. 12 of Exemption Notification No. 12 by 2017-Central Tax (Rate), dated 28.06.2017, nevertheless it had paid the tax inasmuch as its landlords had been charging tax on the invoices issued. In view thereof, the petitioner filed applications seeking to refund taxes paid by it. The respondent authorities by impugned the I WP 18287 & 14905 _2024 deficiency memos, informed the petitioner that the refund i ^ applications are not fit for processing as the stipulated time of two (02) years time period for submission of the said applications is already completed. In this connection it is pertinent to note that as per Entry N6.12 of Exemption Notification No.12 by 2017-Central Tax (Rate), dated 28.06.2017, services by way of renting of residential dwellings for use as residents is exempted, nevertheless the petitioner paid taxes inasmuch as invoices raised by the landlords 8. included the GST component. It is needless to point that any collection of tax shall be in accordance with Article 265 of the Constitution of India which postulates that no tax can be collected without authority of law. As already stated in the case on hand though the petitioner is not liable to pay tax, the same was paid as per the invoices raised by the landlords and therefore it had filed application seeking to refund of the same. Further by impugned deficiency memgs, the authorities have informed the petitioner that the applications are not fit for processing as the same were filed beyond the two (02) years as per Section 54 of COST Act, 2017. \ - WP_18287& 14905 2024 Further, the Hon’ble Gujarat High Court in the case of Comsol Energy Private Limited Vs. State of Gujarat^ had considered the applicability of period of limitation set out under Section 54 of CGST Act and held as under:- 9. “7. Section 54 of the CGST Act is applicable only for claiming refund of any tax paid under the provisions of the CGST Act and/or the GGST Act. The amount collected by the Revenue without the authority of law is not considered as tax collected by them and, therefore, Section 54 is not applicable. In such circumstances. Section 17 of the Limitation Act is the appropriate provision for claiming the refund of the amount paid to the Revenue under mistake of law, which Is as under: (l)Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,- (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) *** (c) the suit or application is for relief from the consequences of a mistake; or (d) ***
This Court, in the case of Binani Cement Ltd. V. Union of India, (2013) 288 ELT 193 (Guj), held that where the duty is collected without any authority of law, such collection of duty is considered as collected without authority of law and, therefore, is opposed to Article 265 of the Constitution of India and, thus, unconstitutional. It is held that the assesses is not bound by the limitation prescribed under the special law for claiming the refund of the excess duty or duty collected illegality. The period of limitation prescribed under the Limitation Act would apply. The relevant abstract of the decision at paragraphs nos. 23 and 25 are as under: xxxxx ^ C/^CA/11905/2020 \ '4 I
i WP 18287 & 14905 _2024 The issue is squarely covered by the decision of this Court In the case of Gokui Agro Resources Ltd^ v^ Union of India (Special Civit Application No.1758 of 2020, decided on 26.02.2020), wherein this Court directed the respondent to pass an appropriate order in the refund application preferred by the assessee without raising any technical issue, within a period of four weeks. The relevant paragraph of the finding of this Hon’ble Court is as under. f “6 We may only say that since the Notification has been struck down as ultra vires, as a consequence of the same, the writ applicant seeks refund of the amount paid towards the IGST. However, for this purpose, the writ applicant will have to prefer an appropriate application addressed to the competent authority. If any such application is preferred tor the refund of the amount, the authority concerned shall immediately look into the same and pass an appropriate order in accordance with law keeping in mind the decision of Mohit Minearls of this Court rendered in the case (supra). The competent authority shall not raise technical issue with regard to the claim for refund of the IGST amount. Let this exercise be undertaken within a period of four weeks from the date of receipt of the writ of this order. ” any ) J I Court while dealing with the similar No. 17220 of 2024 and batch by order the above referred Judgment by therein to consider the refund
Further, this issue, allowed Writ Petition dated ^4.08.2025 following directing the respondents application without going into the question, whether the said application is filed within time or not.
In view of the above reasons and following the above under challenge are set aside directed to consider the application of 11. Judgment, the deficiency memos and the respondents are WP_18287 & 14905 2024 \\ the petitioner for refund of tax without going into the question of Further, the respondents are directed to limitation. pass appropriate orders on the petitioner’s application within a period of four (04) weeks from the date of receipt of copy of the order.
Accordingly, the writ petitions are allowed. No order as to costs. As a sequel, pending applications, if any shall stand closed. U SRIDEVI DEPUTY REGISTRAR //// M SECTION OFFICER To 1. Assistant/ Deputy Commissioner of Central Tax, Nellore- Division, Nellore-lll Range, D.No. 24-7-205/2, Plot No. 221, 12th Main Road Magunta Layout, Nellore- 524 003
Secretary, Union of India, Ministry of Finance, North Block, New Delhi - 110 001
One CC to SRI. PASUPULETI VENKATA PRASAD Advocate [OPUC]
One CC to SRI. VENNA HEMANTH KUMAR(CENTRAL GOVERNMENT COUNSEL) Advocate [OPUC]
Two CD Copies. AL
I % HIGH COURT DATED:26/09/2025 COMMON ORDER WP NO. 18287 & 14905 OF 2024 -Cr 2 « OCT 2025 ★\^ent Sectionxi-^ ALLOWING THE W.P’S WITHOUT COSTS
Reproduced from the public record of the Andhra Pradesh High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.