Biju.K.P vs. The Assistant Commissioner

According to the appellant, on account of an inadvertent error, his accountant, who had been dealing with the files of his brother-in-law, also paid the tax due to his brother-in- law by filing the returns from his portal utilizing the amounts in the cash ledger. Upon realising the mistake, the appellant filed a refund application to refund the tax mistakenly paid on 11/12/2020. The 1st respondent rejected the refund application as per Ext.P1 memo stating that it was submitted out of time. The appellant gave Ext.P2 letter to the 2nd respondent pointing out his objection to the findings in Ext.P1 and requesting to grant refund. Since the 2nd respondent did not act upon Ext.P2, the appellant again gave two requests which were marked as Exts.P3 and P4 to grant refund. Since there was no action on those requests as well, the appellant approached the learned Single Judge to give a direction to the 2nd respondent to pass an order on Ext.P4 at the earliest. The learned Single Judge dismissed the writ petition as per the judgment dated 11th January, 2024. It is challenging the said judgment; the appellant is before us.

We have heard Sri.Harisankar V. Menon, the learned counsel for the appellant and Sri.V.K.Shamsudheen, the learned Senior Government Pleader.

The time prescribed under Section 54(1) of the CGST Act to submit the refund application is two years from the relevant date. As per Explanation 2(h) of Section 54, the relevant date is the date of payment of the tax. The refund application filed by the appellant was rejected, holding that it was not filed within two years from the date of payment of tax as stipulated under Section 54(1). However, the appellant was directed to file a fresh refund application. In compliance with the said direction, the appellant gave a fresh refund application marked as Ext.P2. In Ext.P2, the appellant specifically stated that the date of payment of tax is 26/10/2020, and the refund application was filed by him on 11/12/2020, which is well within time. But there was no response to Ext.P2. Even though the appellant gave Exts.P3 and P4 reminders to consider his refund application, there was no positive response to those reminders either. Since the appellant raised a specific plea that his refund application was well within time, the 2nd respondent is bound to consider the same and pass an order. In these circumstances, we are of the view that the impugned judgment is not sustainable, and accordingly, we set aside the same. We direct the 2nd respondent to consider Exts.P2 to P4 and pass appropriate orders in accordance with law within one month from the date of receipt of a copy of this judgment. Writ appeal is allowed as above. DR. A.K.JAYASANKARAN NAMBIAR JUDGE DR. KAUSER EDAPPAGATH JUDGE Rp