TaxTMI 
TaxTMI 
2022 (2) TMI 847
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....1 to 4. Mr. Abhijeet K. Mangade for Respondent No.5. ORAL JUDGMENT (Per : R. D. DHANUKA, J.) :- 1. Rule. Mr.Walve, learned counsel for Respondent Nos.1 to 4 waives service. Mr.Mangade, learned counsel for Respondent No.5 waives service. 2. By consent of learned counsel for the Parties, the Petition is heard finally. 3. By this Petition filed under Article 226 of the Constitution of India, the Petitioner has impugned the Order dated 18th February 2021 passed by the Respondent No.3, rejecting the application filed by the Petitioner on the ground that the refund claim application was not filed electronically, which was mandatory with effect from 26th September 2019 and onwards in accordance with Circular No. 125/44/201....
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.... 2017 (for short, 'C.G.S.T. Act') on the ground that the refund application was not filed electronically and not in compliance with the Circular dated 18th November 2019. The Petitioner thus filed this Writ Petition inter-alia praying for a writ of certiorari for quashing and setting the Order dated 18th February 2021 passed by the Respondent No.3 and for writ of mandamus directing the Respondent Nos.2 and 3 to consider and process the application for refund dated 4th September 2020 filed by the petitioner. 7. The Writ petition is opposed by the Respondent Nos.1 to 4 by filing Affidavit-in-Reply. In so far as the Respondent No.5 is concerned, the Respondent No.5 has not applied for any refund in respect of Agreement entered into between ....
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.... Act. 10. Learned counsel placed reliance on the Rule 89 of the C.G.S.T. Rules 2017 and would submit that by virtue of explanation (ii) to Rule 89(ii), the amount of tax has been recovered from the Petitioner by the Respondent No.5 and thus it shall be deemed that the incidence of tax has been passed on to the ultimate consumers. He submits that the Petitioner being the ultimate consumer, the Petitioner is entitled to claim the benefit of said GST paid by the Respondent No.5. 11. Learned counsel also placed reliance on Rule 97A of the said C.G.S.T. Rules and would submit that the reference to electronic filing of an application under Chapter X would include manual filing of the said application. He submits that the impugned Order pass....
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....15. It is not in dispute that, the Respondent No.5 had collected GST from the Petitioner on the said Agreement for Sale and has deposited the said amount with Respondent Nos.1 to 4. It is also not in dispute that the Respondent No.5 did not make any application for refund of the GST on the said Agreement for Sale. Respondent No.5 also did not propose to make any claim for refund of GST paid by it. 16. A perusal of the Order passed by the Respondent No.3 indicates that the Respondent No.3 has not rejected the said application for refund filed by the Petitioner under Section 54 of the said C.G.S.T. Act on the ground that the Petitioner is not entitled to apply for refund under any of the provisions of the said C.G.S.T. Act or the applicabl....
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....ertainly be applicable to all application filed electronically on the common portal but the impugned Circular cannot affect or control the statutory rule i.e. Rule 97A of the C.G.S.T. Rules or derogate from it. 18. This Court accordingly quashed and set-aside the impugned Order therein and clarified that the said Circular shall be applicable only to applications filed electronically on the common portal but would have no applicability to an application for refund which is filed manually. Then Court permitted the Petitioner therein to file an application afresh for refund manually within a period of 14 days and directed the Superintendent to process the same and to take it its logical conclusion in accordance with law within two months fr....