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2024 (11) TMI 659
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....arned counsels for respective sides at some length, we take note of the following facts which emerge. 2. The petitioner is principally aggrieved by the order dated 05 July 2023 and which has essentially placed in abeyance the Refund Sanction Order dated 09 December 2022. The Refund Sanction Order undisputedly pertained to the amounts standing to the credit of the Electronic Cash Ledger of the writ petitioner. 3. Undoubtedly, the said ledger would embody amounts which have been deducted under Section 51 of the Central Goods and Services Tax Act, 2017 by a department or establishment of the government, a local authority, or other governmental agencies. In this case, these were amounts which were deducted by the Delhi Metro Rail Corporation and credited to the Electronic Cash Ledger of the deductee, namely, the petitioner herein. 4. We also take note of the provisions contained in Section 49 (5) of the Act and which prescribe the manner in which the Input Tax Credit available in the Electronic Credit Ledger of a registered person could be utilized. Of equal significance is sub-section (6) of Section 49 which provides that the balance in the Electronic Cash o....
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....MONTHS" may be read as "TWO YEARS" The above Revision/Stay order dated 05.07.2023 stands corrected to that extent." 5. Mr. Singla at the outset contended that Section 108 confers a power on the revisional authority to stay the operation of a decision or order made under the CGST Act in the interregnum and till it concludes an inquiry with respect to the validity of the said decision or order. In view of the aforesaid, it was contended that there exists no justification for the Court to interdict those proceedings initiated by the revisional authority at this stage and where only an interim stay had been granted and all rights and contentions of the writ petitioner stand preserved. 6. Taking us through the provisions enshrined in Sections 49, 51 and 54 of the CGST Act, Mr. Singla submitted that the power to restrain implementation of an order of refund would apply equally to sums standing to the credit of either the Electronic Credit or the Electronic Cash Ledger. Mr. Singla laid emphasis on Section 49 (3) in terms of which the statute provides that the amount available in the Electronic Cash Ledger may be used for making payments towards tax, interest, penalty, fee or any oth....
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....se may be, Union territory tax, in that order; (b) the central tax shall first be utilised towards payment of central tax and the amount remaining, if any, may be utilised towards the payment of integrated tax; (c) the State tax shall first be utilised towards payment of State tax and the amount remaining, if any, may be utilised towards payment of integrated tax: [Provided that the input tax credit on account of State tax shall be utilised towards payment of integrated tax only where the balance of the input tax credit on account of central tax is not available for payment of integrated tax;] (d) the Union territory tax shall first be utilised towards payment of Union territory tax and the amount remaining, if any, may be utilised towards payment of integrated tax: [Provided that the input tax credit on account of Union territory tax shall be utilised towards payment of integrated tax only where the balance of the input tax credit on account of central tax is not available for payment of integrated tax;] (e) the central tax shall not be utilised towards payment of State tax or Union territory tax; and (f) the State tax....
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....: Provided that no such transfer under clause (b) shall be allowed if the said registered person has any unpaid liability in his electronic liability register.] [(11) Where any amount has been transferred to the electronic cash ledger under this Act, the same shall be deemed to be deposited in the said ledger as provided in sub-section (1).] [(12) Notwithstanding anything contained in this Act, the Government may, on the recommendations of the Council, subject to such conditions and restrictions, specify such maximum proportion of output tax liability under this Act or under the Integrated Goods and Services Tax Act, 2017 (13 of 2017) which may be discharged through the electronic credit ledger by a registered person or a class of registered persons, as may be prescribed.] xxxx xxxx xxxx 51. Tax deduction at source.-(1) Notwithstanding anything to the contrary contained in this Act, the Government may mandate,- (a) a department or establishment of the Central Government or State Government; or (b) local authority; or (c) Governmental agencies; or (d) such persons or category of persons as may be notifi....
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....ion 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 sub-section (6) of Section 49, may claim such refund in [such form and] manner as may be prescribed. (2) A specialised agency of the United Nations Organisation or any Multilateral Financial Institution and Organisation notified under the United Nations (Privileges and Immunities) Act, 1947 (46 of 1947), Consulate or Embassy of foreign countries or any other person or class of persons, as notified under Section 55, entitled to a refund of tax paid by it on inward supplies of goods or services or both, may make an application for such refund, in such form and manner as may be prescribed, before the expiry of [two years] from the last day of the quarter in which such supply was received. (3) Subject to the provisions of sub-section (10), a registered person may claim refund of any unutilised input tax credit at the end of any tax period: Provided that no refund of unutilised input tax credit shall be allowed in case....
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....b-section (5) for final settlement of the refund claim after due verification of documents furnished by the applicant. (7) The proper officer shall issue the order under sub-section (5) within sixty days from the date of receipt of application complete in all respects. (8) Notwithstanding anything contained in sub-section (5), the refundable amount shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) refund of tax paid on ["export" and "exports"] of goods or services or both or on inputs or input services used in making such zero-rated supplies; (b) refund of unutilised input tax credit under sub-section (3); (c) refund of tax paid on a supply which is not provided, either wholly or partially, and for which invoice has not been issued, or where a refund voucher has been issued; (d) refund of tax in pursuance of Section 77; (e) the tax and interest, if any, or any other amount paid by the applicant, if he had not passed on the incidence of such tax and interest to any other person; or (f) the tax or interest borne by such other class of applicants as the Gov....
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.... unless such person has, in respect of the entire period for which the certificate of registration granted to him had remained in force, furnished all the returns required under Section 39. (14) Notwithstanding anything contained in this section, no refund under sub-section (5) or sub-section (6) shall be paid to an applicant, if the amount is less than one thousand rupees. [(15) Notwithstanding anything contained in this section, no refund of unutilised input tax credit on account of zero rated supply of goods or of integrated tax paid on account of zero rated supply of goods shall be allowed where such zero rated supply of goods is subjected to export duty.] Explanation.-For the purposes of this section,- (1) "refund" includes refund of tax paid on zero-rated supplies of goods or services or both or on inputs or input services used in making such zero-rated supplies, or refund of tax on the supply of goods regarded as deemed exports, or refund of unutilised input tax credit as provided under sub-section (3). (2) "relevant date" means- (a) in the case of goods exported out of India where a refund of tax paid is available in res....
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....vices or both by such person; and (h) in any other case, the date of payment of tax." 9. The sums which come to be deposited in the Electronic Credit Ledger comprise of the Input Tax Credit [ITC] as self-assessed by a registered person. That amount is available to be utilised in accordance with the priorities as fixed in Section 49 (5). The sums which come to be credited to the Electronic Cash Ledger represent the tax deducted by the authorities specified in Section 51 from the payment made or credited to a supplier of taxable goods or services or both. Thus, both sums standing either in the Electronic Credit or Electronic Cash Ledgers constitute tax. 10. Section 54 prescribes the manner in which a person claiming refund may apply for disbursal of those amounts. Hereto, the Proviso to Section 54 (1) stipulates that a registered person claiming refund of sums standing in balance in the Electronic Cash Ledger would have to follow the procedure as prescribed. Of crucial significance is the usage of the phrase "in accordance with the provisions of sub-section (6) of Section 49" as they appear in Section 54 (1). Thus refund, be it from the Electronic Cash or the Electroni....
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....t from the Commissioner of State tax, or the Commissioner of Union territory tax, call for and examine the record of any proceedings, and if he considers that any decision or order passed under this Act or under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by any officer subordinate to him is erroneous in so far as it is prejudicial to the interest of revenue and is illegal or improper or has not taken into account certain material facts, whether available at the time of issuance of the said order or not or in consequence of an observation by the Comptroller and Auditor General of India, he may, if necessary, stay the operation of such decision or order for such period as he deems fit and after giving the person concerned an opportunity of being heard and after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, including enhancing or modifying or annulling the said decision or order. (2) The Revisional Authority shall not exercise any power under sub-section (1), if- (a) the order has been subject to an appeal under Section 107 or Section 112 or Section 117 or Section 118; or ....
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....mission we deem it apposite to extract the following paragraphs from the order impugned: "3. After examining the electronic cash ledger of the tax payer, it appeared to the adjudicating authority that TDS has been credited in the cash ledger as detailed in para 2 above and the same has been debited in the electronic cash ledger while claiming the refund claim. Therefore the adjudicating authority sanctioned an amount of Rs. 5,50,00,000/- (CGST-2,75,00,000/- & SGST 2,75,00,000) as electronic cash refund the tax payer i.e. M/s HCC-VCCL Joint Venture under rule 92 of CGST Rules, 2017 read with section 54 of the CGST Act, 2017. 4. After issuance of impugned RFD-06 a copy of the same was endorsed to the undersigned for information. On specific intelligence inputs and further data analysis thereon, it came to the notice that the impugned order is erroneous insofar as it is prejudicial to the interest of revenue and is improper and has not taken into account certain material facts which were not available at the time of issuance of the said order as detailed herein below: (i) As per the data available, the taxable value of Inward Supplies is Rs 348 crores from t....
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.....75 crores (Rs. 132 Crores - 16.25 crores) have been found short paid to the surprise as per Bank Statement involving tax amount of Rs. 20.83 crores (@ 18%) which is in contravention of Section 16(2) of the CGST Act, 2017, read with Rule 37 of the CGST Rules, 2017. Further ITC utilized for which complete payment has not been made within 180 days is liable for interest as per under Section 50 of CGST Act, 2017. The relevant provision of Section 16 (2) is reproduced below. Section 16. Eligibility and conditions for taking input tax credit.- (1) Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the same amount shall be credited to the electronic credit ledger of such person. (2) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless,- (a) he is in poss....
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....rn in FORM GSTR-3B for the tax period immediately following the period of one hundred and eighty days from the date of the issue of the invoice: Provided that the value of supplies made without consideration as specified in Schedule I of the said Act shall be deemed to have been paid for the purposes of the second proviso to sub-section (2) of section 16: Provided further that the value of supplies on account of any amount added in accordance with the provisions of clause (b) of sub-section (2) of section 15 shall be deemed to have been paid for the purposes of the second proviso to sub-section (2) of section 16. (2) Where the said registered person subsequently makes the payment of the amount towards the value of such supply along with tax payable thereon to the supplier thereof, he shall be entitled to re-avail the input tax credit referred to in sub-rule (1).] (3) [****] (4) The time limit specified in sub-section (4) of section 16 shall not apply to a claim for re-availing of any credit, in accordance with the provisions of the Act or the provisions of this Chapter, that had been reversed earlier." 17. As is manifest from the afor....