TaxTMI 
TaxTMI 
2025 (12) TMI 989
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....out any legal basis; c. To issue order(s), directions, writ(s) in the nature of Mandamus holding that the Petitioner is eligible to claim refund in terms of Section 54 of the CGST Act and Rule 89 of the CGST Rules; d. To issue order(s), directions, writ(s) in the nature of Mandamus holding that the Petitioner has rightly claimed refund in terms of Section 54 while submitting its refund application for excess payment of tax in Form GST RFD-01; e. To issue order(s), directions, writ(s) or any other relief as this Hon'ble Court deems it fit and proper in the facts and circumstance of the case in the interest of justice." 2. Heard learned Senior counsel on behalf of the learned counsel for the petitioner and learned HCGP for the respondents and perused the material on record. 3. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on record, learned Senior counsel for the petitioner invited my attention to the impugned refund rejection order at Annexure-B dated 28.01.2022 along with the screenshot of the status of refund application, which was rejected and accompanying by the endorsemen....
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.... 080-28362910 FORM-GST-RFD-06 [See rule 92(1), 92(3), 92(4), 92(5) & 96(7)] Order No.: JCCT/DGSTO-06/RFD/186/LGSTO-07/2021-22 Dated:28-01-2022 To 29AAACA3834B1Z4 M/S. ABB INDIA LIMITED Plot No.4A.5 and 6, 2nd Phase, Peenya Industrial Area, Bengaluru (Bangalore) Urban, Karnataka - 560058 Show cause notice No. (If applicable): ZL2912218749616, DT: 31-12-2021 Acknowledgment No.JCCT/DGSTO-06/RFD/186/LGSTO-075/2021-22, DT: 20-12-2021 Period: Feb-2020 ARN No: AA291121062516E, DT: 30/11/2021 Excess payment of tax Refund Rejection Order Sir/Madam, This has reference to your above mentioned application for refund filed under section 54 of the Act, 2017. Upon examination of your application, the amount of refund sanctioned to you, after adjustment of dues (where applicable) is as follows: Description ITST CGST SGST CESS 1. Amount of Refund / Interest Claimed 0 40,85,556 40,85,556 0 2. Refund sanctioned on provisional basis (Order No Date.) (if applicable) 0 0 0 0 3. Refund amount inadmissible 0 40,85,556 40,85,556 0 ....
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...., 1st Floor, KIADB Building, Peenya Industrial Area, 14th Cross, 2nd Stage, Bengaluru - 560 058, Phone: 080 28362910 ENDORSEMENT 1. ABB INDIA LIMITED, is registered under the KGST Act, 2017 with GSTIN: 29AAACA3834B1Z4. It had applied for refund of GST of Rs. 81,71,112/- under the category 'Excess payment of tax' for the tax period February-2020 as per refund application in RFD-01 vide ARN: AA291121062516E Dt: 30/11/2021. 2. After observing some lapses, a Show Cause Notice (SCN) for rejection of refund application/inadmissible refund in FORM GST RFD-08 dated 31-12-2021 was issued by this office with an opportunity to do so. Since no reply was received by the undersigned authority, the refund rejection order in FORM GST RFD-06 dated 28-01-2022 was issued rejecting the refund application and claim of refund of Rs. 81,71,112/- for the factual and legal position as noted in the SCN issued in RFD-08. 3. In pursuance of the said order dated 28/01/2022, the taxable person has filed a letter dated 21-01-2022 which is received in this office on 01-02-2022 The said letter is in form of a reply to the SCN dated 31-12-2021 issued from this office. However, fo....
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.... its business, consequent to which, all overseas project contracts were to be novated to the demerged entity by name Hitachi Energy India Limited (HEIL) (formerly known as ABB Power Products & Services India Limited (APPSIL). However, certain existing overseas project contracts could not be novated pursuant to the binding contract with the customer (in case of sale) or the supplier (in case of purchases). In such cases, the related purchase and sale relating to non-novated contracts were executed through ABB India as a pass thru in terms of Joint Operation Protocol Agreement. 4. The supplies made by ABB India to various overseas customers inter alia included design, manufacture, test, deliver, install, complete and commission of Grid Substation involving both supply of goods and services. In case of projects located outside India, the supply of goods or services, required for the said project, were made (a) from India to the said project site, (b) from outside India to the project site, and (c) domestically procured within the Project Country. 5. It is submitted that with regard to Sl. No. (b) & (c) above, the transaction between ABB Ind....
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....y issue to the recipient one or more credit notes for supplies made in a financial year containing such particulars as may be prescribed. (2) Any registered person who issues a credit note in relation to a supply of goods or services or both shall declare the details of such credit note in the return for the month during which such credit note has been issued but not later than September following the end of the financial year in which such supply was made, or the date of furnishing of the relevant annual return, whichever is earlier, and the tax liability shall be adjusted in such manner as may be prescribed: Provided that no reduction in output tax liability of the supplier shall be permitted, if the incidence of tax and interest on such supply has been passed on to any other person. 10. Per the above, it is submitted that in terms of Section 34 (1) of the CGST Act, 2017, credit note could be issued only where excess taxable value or tax charged is found or where goods are returned or goods or services are found to be deficient. However, Section 34 (1) does not contemplate to issuance credit note where a tax invoice was issued for a transaction which is....
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....ection (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 Government may, on the recommendations of the Council, by notification, specify. 15. In the instant case, in terms of clause (e) above, the tax is paid by ABB India and by issuance of credit note has reversed the incidence of such tax, the eligible refund ought to be credited into the account of ABB India. 16. Further, with regard to time limit it concerned, Explanation (2) to Section 54 prescribes the relevant date for various instances listed below: (2) "relevant date" means,- (a) in the case of goods exported out of India where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in ....
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....at HEIL, on the basis of the same understanding as detailed above (transaction being wrongly taxed), has reversed the input tax credit of GST charged in respect of the invoices issued by ABB India for the period from December 2019 to March 2020. 19. Company has submitted CA Certificate to substantiate the absence of unjust enrichment as Annexure-R of the refund application. A copy of the challans in Form DRC-03 for reversal of input tax credit by HEIL are submitted as Annexure B to this reply 20. Accordingly, the instant claim i.e. refund of excess payment of tax is squarely covered in Section 54(1) & (8) of the CGST Act, 2017 and filed within the time-limit as permitted under Section 54. 21. Since the transaction between ABB India and HEIL are outside the purview of GST as detailed above, the provisions of Section 34 ought not to apply, particularly in the context of timelines is concerned. 22. Accordingly, the Company has rightly claimed refund under Section 54 and within the timelines and hence ought to be considered as eligible for refund. We humbly request your kind authority to consider the above submissions as sufficient complianc....
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....ulars therein, other than as a result of scrutiny, audit, inspection or enforcement activity by the tax authorities, he shall rectify such omission or incorrect particulars in the return to be furnished for the month or quarter during which such omission or incorrect particulars are noticed, subject to payment of interest under this Act: Provided that no such rectification of any omission or incorrect particulars shall be allowed after the due date for furnishing of return for the month of September or second quarter following the end of the financial year, or the actual date of furnishing of relevant annual return, which ever is earlier. Here it is to be noted that, in the instant case, returns for the month of Dec 2019 to March 2020 should have been revised in any case on or before the date of filing of return for September 2020 i.e. 20.10.2020 since the annual return was filed on 26.02.2021. 3. Whereas, in the instant case, credit notes and bills of supply were issued for those invoices on 31-10-2021. The said credit notes are beyond the time prescribed under Section 34 of the GST Act, 2017. Section 34 of CGST Act/SGST Act prescribes the provisions for issue of....
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.... scheme" and notification or correction of omissions or adjustments to be made or to cure the deficiencies etc., well within the time frame fixed under the GST Act. 2017. Underlining the sense of time stipulated to be followed, the Hon'ble Apex Court added that, it of other stakeholders, because of the cascading effect in their ties records. Thus, there is no scheme of relaxation of time which otherwise would defeat the very purpose of the Act in large. Further, the Hon'ble Supreme Court in its recent judgment dated 10/12/2021 rendered in the case of Union of India & Ors Vs. AAP and Company (No. Civil Appeal No(s). 5978/2021) had challenged the validity of Circular issued by the CBIC Jurisdiction Form GSTR-3B is return or not - imposition on rectification of Form GSTR-3B in respect of the period which the error had occurred HELD THAT The judgement of the High Court has been expressly overruled by a three-Judge Bench decision of Hon'ble Supreme Court in Union of India Vs. Bharti Airtel Ltd & Ors (supra)-Finally the case is derided in favour of Revenue. CONCLUSION The ratio of the judgments (supra) squarely applies to the facts of the case on ha....
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....uthority as may be prescribed within in three months from the date on which the said decision or order is communicated to such person. [emphasis supplied by me] 4. The above provision make it clear that the filing of an appeal to Appellate authority only on the "decision" or "Order" passed under this Act. Here in this case, the Appellant has filed an appeal in Form GST-APL. 01 against the "Endorsement" as the "Endorsement" is neither an order nor decision under the above said provision and, therefore, the Respondent in rejecting the application of the Appellant by issue of the endorsement against which an appeal cannot be preferred and, therefore, the appeal filed against endorsement is not maintainable. 5. In view of the above, I hereby pass the following orders. ORDER The appeal in GST/AP-10/2022-23 for the tax period in February, 2020 is hereby dismissed." 9. As can be seen from the order of the Appellate Authority, there is no finding recorded on merits by the Appellate Authority, which has proceeded to summarily reject the appeal on the erroneous premise that no refund rejection order was passed, which is factually incorrect and ....