TaxTMI 
TaxTMI 
2024 (8) TMI 188
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....dentical, they have been heard together would be disposed of by this common judgment. 3. Rule returnable forthwith. Learned advocate Mr. Hirak Shah for learned advocate Mr. Nikunt Raval waives service of notice of rule on behalf of respondent no. 2 and learned Assistant Government Pleader Mr. Raj Tanna waives service of notice of rule on behalf of the respondent State. 4. For the sake of convenience, facts are noted from Special Civil Application No. 2114 of 2021. 5. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs: "A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, orders or directions to quash and set aside the impugned order dated 20.02.2020 passed by Assistant Commissioner Central GST & Excise Division-II, Surat (at Annexure-G); (B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, orders or directions to the respondent authorities to immediately sanction the refund of Rs. 1,43,780/- filed vide application dated 17.09.2018 in form GST RFD-01A filed bear....
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....r vide letter dated 26.11.2019 requested respondent no.3 to transfer the files pertaining to 2017-2018 to respondent no. 2 and said files were transferred to office of respondent no. 2 on 10.12.2019. 12. Pursuant to such application, respondent no. 2 issued a deficiency memo in Form - GST RFD-03 dated 24.12.2019 asking the petitioner to provide various information/documents i.e. (i) Credit Ledger from 01.09.2017 to 17.09.2018 (ii) GSTR-2A (iii) Manual RFD-01A in proper format (iv) Undertaking to repay refund along with interest in case any amount paid in excess/erroneously etc. The petitioner accordingly provided all the information as required by respondent no. 2 vide letters dated 31.12.2019 and 02.01.2020. 13. Respondent no. 2 however issued a show cause notice being Form-GST-RFD-08 dated 17.01.2020 to the petitioner stating that the time limit for filing refund application is two years from due date of filing return under section 39 of the CGST Act. The petitioner therefore, vide letter dated 24.01.2020 responded to show cause notice stating that after filing the refund application on portal, the petitioner was required to file the same....
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....t from 26.09.2019 and it further provides that refund application shall be considered only if the same is filed after issuance of deficiency memo. 19. Considering the above submissions in facts of the case, it is apparent that the petitioner has filed refund application within the period of two years i.e. for year 2017-2018, refund application was filed on 17.09.2018 and subsequently, fresh refund application was filed after receipt of deficiency memo on 2.01.2020 and therefore, as per the decision of this Court in case of M/s. LA-Gajjar Machineries Private Limited (supra), original refund application filed by the petitioner on 17.09.2018 would be considered as a proper refund application within the period of limitation and fresh refund application filed pursuant to the deficiency memo, would be considered as in continuation of first refund application. This Court in the said judgment held as under: "[9] Having heard the learned advocates for the respective parties and considering the facts and the provisions of law, which are reproduced hereinabove, short question which arises for consideration is whether the petitioner is entitled to get the refund by considering the ....
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....er to verify its claims for refund. It is also apparent that some of the documents demanded were not relevant as the petitioner's claim was for refund of IGST and not unutilised ITC. 23. The nature of the deficiencies as set out in deficiency memo no. 2 clearly indicate that the application filed by the petitioner was not incomplete in terms of Rule 89 (2) of the CGST Rules. Sub-rules (3) and (4) of Rule 89 of the CGST Rules are not applicable in the facts of the present case. The petitioner had, in terms of Clause (c) of Sub-rule (2) of Rule 89 of the CGST Rules, submitted a statement containing the number and date of invoices and the relevant Bank Realisation Certificates/Foreign Inward Remittance Certificates. It was also accompanied by the necessary declaration as specified. 24. In view of the above, the application for refund filed by the petitioner on 31.10.2019 could not be ignored or disregarded. 25. As noted above, in terms of Section 54 (1) of the CGST Act, an application is required to be made in the prescribed form and manner before two years from the relevant date. It is clear that the petitioner had complied with the said requirement inasmuc....
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....the refund claim in Form GST RFD-01 till the date of communication of the deficiency in the Form of GST RFD-03 by the proper officer is required to be excluded from the period of two years, as specified in respect of any such fresh refund claim filed by the applicant after rectification of the deficiency. The insertion of proviso to Rule 90 (3) of the CGST Rules is therefore clarificatory in consonance with the objective of Section 54 (1) of the CGST Act. In our opinion, the same would be applicable in the facts of the case also where the rectified refund application filed by the petitioner is within the period of limitation after applying the above provision and shall fall within two years after excluding the period from the date of fling of the refund claim in Form GST RFD-01 till the date of communication in Form GST RFD-03, which is calculated by the petitioner as 26 days as under: Date of filing the Refund claim Date of deficiency pointed out Days to be excluded 16.12.2019 27.12.2019 11 27.01.2020 11.02.2020 15 13.02.2020 Nil The refund claim of the petitioner pertains to December 2017, due date of filing return would be 22nd....