TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 235
X X X X Extracts X X X X
X X X X Extracts X X X X
....dents. 2. The petitioner in the present writ application is seeking the following reliefs : - "(i) For issuing a writ of certioriari or any other appropriate writ quashing/ setting aside the Order for rejection of Refund Application filed by the Petitioner on the ground of being barred by the law of limitation as prescribed under Section 54 of BGST/CGST Tax, Act, 2017 vide order dated 06.05.2024 (as contained in Annexure-P4) and refund rejection order vide Reference No- ZD100524003509V, dated 06.05.2024 in the FORM RFD-06 (as contained in Annexure-P-4A) passed by the Respondent No-6 rejecting the refund of excess tax paid of Rs.2,54,097.00 under the CGST and Rs.2,54,097.00 under the BGST Act total amounting to Rs.5,08,194.00 relating to January 2018 for the assessment Year 2017-2018 in violation of the provision of Section 77 BGST/CGST Act, 2017 read with sub-rule (1A) of Rule 89 BGST/CGST Rule 2017 which render the entire proceedings of the Respondent No-6 being violative of the BGST/CGST Act and Rules and thus the order is liable to be set aside. (ii) For issuing of a writ of certiorari or any other appropriate writ quashing/ setting aside the o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... provide that refund application shall be filed before expiry of a period of two years from date of payment of tax. (vi) For issuing of a writ of certiorari or any other appropriate writ/ order commanding the Respondents to refund petitioner's lawful refund along with interest. (vii) For granting any other relief(s) to which the petitioner is otherwise found entitled to in accordance with law." Brief Facts of the Case 3. It is the case of the petitioner that for the financial year 2017-18, the petitioner filed his all GSTR-01, GSTR-3B & GSTR-09 and paid all due taxes according to the returns. Later on, The petitioner's Book of Account was selected for Audit under Section 65(1) of the Bihar Goods and Services Tax/ Central Goods and Services Tax Act, 2017 (hereinafter referred to as the 'BGST/CGST Act, 2017'). The Audit Report prepared under Section 65(6) in GST ADT-02 Form observed that the petitioner short paid Integrated Goods and Services Tax (in short 'IGST') of Rs.5,08,195/- identifying certain transactions to be Inter-State transactions which the petitioner had treated as Intra-State transactions under CGST/SGST Act, 2017 and had paid the taxes. 4. Learned counsel for t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... writ application by filing a counter affidavit. It is submitted that in view of the provisions under Section 54(1) read with Explanation 2(h) of Section 54 of the CGST/BGST Act, 2017, a refund application must be filed within two years of payment of tax sought to be refunded. It is his submission that since the tax sought to be refunded has been paid in January 2018, the refund application was filed by the petitioner on 17.01.2024, therefore, it was delayed by almost four years. 10. In course of argument, learned SC-11 has submitted that even though the respondents were willing to refund the amount but on the face of Section 54 of the CGST/BGST Act, 2017, the refund could not have been made after expiry of two years period of limitation. Consideration 11. We have heard learned counsel for the petitioner and learned SC-11 for the State. It is evident on reading of the impugned order (Annexure 'P4') that at more than one places, the Joint Commissioner State Taxes had observed that the amount paid by the Assessee on account of SGST and CGST are eligible for refund but towards the end of the order, the refund application has been rejected citing Section 54 of the BGST Act, 2017 and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....may be, on a transaction considered by him to be an intra- State supply, but which is subsequently held to be an inter-State supply, shall not be required to pay any interest on the amount of integrated tax payable." 15. We find that the impugned order has though taken note of Section 77(1) of the BGST/CGST Act, 2017 but the same has not been duly considered and appreciated by the Joint Commissioner State Taxes. He has also not taken into consideration the clarificatory Circular No. 162/18/2021-GST. The said Circular clarifies the position with regard to the application of limitation in these matters. Clarity may be found in paragraphs '3' to '6' of the said Circular. Those are important to take note of, hence, we extract the same hereunder:- "3. Interpretation of the term "subsequently held" 3.1 Doubts have been raised regarding the interpretation of the term "subsequently held" in the aforementioned sections, and whether refund claim under the said sections is available only if supply made by a taxpayer as inter-State or intra-State, is subsequently held by tax officers as intra-State and inter-State respectively, either on scrutiny/ assessment/ audit/ investigation, or as a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed by the Commissioner: Provided that the said application may, as regard to any payment of tax on inter-State supply before coming into force of this sub- ule, be filed before the expiry f a period of two years from the date on which this sub-rule comes into force." 4.2 The aforementioned amendment in the rule 89 of CGST Rules, 2017 clarifies that the refund under section 77 of CGST Act/ Section 19 of IGST Act, 2017 can be claimed before the expiry of two years from the date of payment of tax under the correct head, i.e. integrated tax paid in respect of subsequently held inter-State supply, or central and state tax in respect of subsequently held intra-State supply, as the case may be. However, in cases, where the taxpayer has made the payment in the correct head before the date of issuance of notification No.35/2021- entral Tax dated 24.09.2021, the refund application under section 77 of the CGST Act/ section 19 of the IGST Act can be filed before the expiry of two years from the date of issuance of the said notification. i.e. from 24.09.2021. 4.3 Application of sub-rule (1A) of rule 89 read with section 77 of the CGST Act / section 19 of the IGST Act is explained through ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....19 of the IGST Act also, where the taxpayer has initially paid IGST on a specific transaction which later on is held as intra-State supply and the taxpayer accordingly pays CGST and SGST on the said transaction. It is also clarified that any refund applications filed, whether pending or disposed off, before issuance of notification No.35/2021-Central Tax, dated 24.09.2021, would also be dealt in accordance with the provisions of rule 89 (1A) of the CGST Rules, 2017. 4.4 Refund under section 77 of the CGST Act / section 19 of the IGST Act would not be available where the taxpayer has made tax adjustment through issuance of credit note under section 34 of the CGST Act in respect of the said transaction. 5. It is requested that suitable trade notices may be issued to publicize the contents of this circular. 6. Difficulty, if any, in implementation of this Circular may please be brought to the notice of the Board. Hindi version would follow" 16. On a bare reading of Section 77 of the CGST Act, 2017 read with Section 19 of the IGST Act and the clarificatory Circular, this Court has no iota of doubt that in the present case, the relevant date for counting the period of limitation ....