TMI Blog2021 (4) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for mismatch of ITC between GSTR-3B and GSTR-2A and stated that he is entitled for the refund of ₹ 6,04,638/- in terms of Circular No. 139/09/2020-GST, dated 10-6-2020, which has not been considered by the adjudicating authority - the appellant did not get the proper opportunity to submit their reply/submission in their contention before the adjudicating authority. The reason of non-submission of reply and not appearing for personal hearing before the adjudicating authority is acceptable in terms of Notification No. 35/2020-Central Tax, dated 3-4-2020. As per the notification the time limit for filing of reply by taxpayers was extended upto 30-8-2020 due to COVID-19 spread - An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated against such person. The adjudicating authority while rejecting the refund claim of the appellant neither considered their request nor their first request for seeking adjournment of personal hearing due to COVID-19 lockdown in terms of Notification No. 35/2020-Central Tax, dated 3-4-2020 - the passing of non-speaking order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity of personal hearing to the Appellant and thus violated the principle of natural justice. (1.2) That Section 75 of the CGST Act lays down the general provisions relating to determination of tax. Sub-section 4 of the said section specifically states that in case any adverse action is anticipated against any person then an opportunity of hearing has to be provided to the said person. The said provision reads as under. Section 75 : General provisions relating to determination of tax (1) .. (4) An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty or where any adverse decision is contemplated against such person. Moreover, proviso to Rule 92 of Central Goods and Services Tax Rules, 2017 (hereinafter referred as `CGST Rules ) states that no application for the refund to be rejected without giving opportunity c hearing. The relevant Rule is reproduced below : Rule 92 of CGST Rules : Order sanctioning refund .. (3) Where the proper officer is satisfied, for reasons to be recorded in writing, that the whole or any part of the amount claimed as refund is not adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead of COVID-19, across many countries including India, the Government extended the time limit for filing of reply, as per provisions of CGST Act, if the said reply has to be filed during period 20-3-2020 to 30-8-2020. As per the said Notification, the time limit has been extended upto 31-8-2020. The copy of the Notification is annexed herewith and marked as Annexure-A. Further, vide the Notification, the time limit for issuance of order has also been extended to 31-8-2020. However, without considering the extension of time provided by the Notification, the Ld. Adjudicating Authority hastily passed the Impugned Order. (2.3) That as per the Notification, the Appellant had the time till 31-8- 2020 to file reply to the SCN. Thus, the Ld. Adjudicating Authority ought to have granted time till 31-8-2020 to the Appellant to file reply to SCN as per the Notification. However, without considering the said fact, the Ld. Adjudicating Authority passed the Impugned Order in contravention with the Notification. (2.4) That the Ld. Adjudicating Authority has also been granted time to pass the order till 31-8-2020. Thus, there was no limitation period which was running due to which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inputs being higher than the rate of tax, on output supplies, other than nil-rated or fully exempt supplies; Thus, the Appellant duly submitted the said statement with the refund claim. The copy of the refund application is annexed herewith. (3.3) Further, as per the SCN it has been remarked that the net ITC as per Application is ₹ 1,45,70,207.83/- but as per the documents provided by the Appellant, the net ITC is ₹ 1,39,65,569.55/-. It is humbly submitted that the net ITC mentioned by the Appellant in the refund application i.e. ₹ 1,45,70,207.83 /- is as per the balance of the Net ITC in Form GSTR-3B of the Appellant less the amount of input tax credit on account of input services and capital goods. The copy of Form GSTR-3B is annexed herewith. The Appellant also submitted Form GSTR-2A and the department considered the net ITC mentioned in Form GSTR-2A less the amount of input tax creditor account of input services and capital goods i.e. ₹ 1,39,65,565.55 as the Net ITC and rejected the refund claim on account of mismatch in the Net ITC in Form GSTR-3B and Form GSTR-2A. (3.4) That it is humbly submitted that the Net ITC reflected in Form GSTR-3B inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant has also placed reliance in their defence on the following decisions :- IPC Packaging Company Pvt. Ltd. v. Add. C.C., ICD, Bangalore - 2017 (6) G.S.T.L. 256 (Kar.) Calcom Vision Ltd. [2008 (11) S.T.R. 212 (Tri. Del.)] Amman Match Company [2018 (363) E.L.T. 120 (Mad.)] Kerala Co-Op. Dev. Welfare Fund Board v. Union of India [2018 (13) G.S.T.L. 262 (Ker.)], Thilagarathinarn Match Works v. Commissioner of C. Ex., Madurai [2018 (362) E.L.T. 393 (Mad.)] the Hon'ble Madras. Micro Tech System v. Asstt. Commr., SGST, Alappuzlia [2018 (18) G.S.T.L. 9 (Ker.)], That from the above decision it is evident that before rejection the refund claim, the assessees should be provided with the opportunity- of personal hearing and then the speaking order has to be passed. In the present case, it is apparent that there is violation of natural justice. Hence, the Impugned Order needs to be set aside. On perusal of above decisions, it is humbly submitted that while passing an order for rejection of refund claim a fair opportunity has to be granted to the assessee to defend himself. It is after considering the submissions made by the assessee and providing him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R-3B and GSTR-2A and stated that he is entitled for the refund of ₹ 6,04,638/- in terms of Circular No. 139/09/2020-GST, dated 10-6-2020, which has not been considered by the adjudicating authority. 9. In view of the above facts, I find that the appellant did not get the proper opportunity to submit their reply/submission in their contention before the adjudicating authority. Further, he did not get opportunity of being heard. The reason of non-submission of reply and not appearing for personal hearing before the adjudicating authority is acceptable in terms of Notification No. 35/2020-Central Tax, dated 3-4-2020. As per the notification the time limit for filing of reply by taxpayers was extended upto 30-8-2020 due to COVID-19 spread. 10. Further, sub-sections (4), (5) and (6) of Section 75 of CGST Act, 2017 is also relevant in the matter. (4) An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated against such person. (5) The proper officer shall, if sufficient cause is shown bv the person chargeable with tax, grant time to the said person and ..... 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