TMI Blog2022 (10) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... M GST RFD-01 would be 23.09.23 (two years from date of notification). In case, the adjudicating authority holds that the transaction as an inter-State supply and if A pays IGST in respect of transaction on 10.05.2019, the last date for filing refund application would be 23.09.2023. Since the issue involved relates to period of limitation in filing the refund application, coupled with the documents to be filed, it would be just and proper, in our view, to remand the matter back to the authority i.e. third respondent/Assistant Commissioner Central Tax, to deal with the refund application in the light of the Circular No.162/18/2021-GST dated 25.09.2021, issued more particularly with regard to the applicability of the Circular issued by the Government, and then pass orders in accordance with law. The writ petition is disposed off. - Writ Petition No. 11424 of 2021 - - - Dated:- 29-9-2022 - Hon ble Sri Justice C.Praveen Kumar And Hon ble Sri Justice A.V. Ravindra Babu For the Petitioner : Arun Showri G For the Respondent : Harinath N (Deputy Solicitor General), Suresh Kumar Routhu (SR SC FOR CBIC) ORDER:- PER THE HON BLE SRI JUSTICE C. PRAVEEN KUMAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing was said to have been identified by the petitioner bank in the year 2019 and in order to correct the tax payment in respective states, the petitioner suo motu deposited appropriate CGST + SGST in Telangana for all the tax periods i.e. from July, 2017 to August, 2019, where IGST was wrongly paid from Andhra Pradesh registration. (c) It is further averred that the petitioner bank has duly paid CGST and SGST suo motu in Telangana in cash and have reported the same by filing GST Form DRC 03 in Telangana State. As a result of the same, the petitioner bank has paid tax twice i.e. IGST in Andhra Pradesh from its Andhra Pradesh registration and CGST and SGST in Telangana from its TL registration, for the same services. (d) Having regard to the above, the petitioner bank filed refund applications for the IGST paid for the years July, 2017 to August, 2019 on 14.02.2020 in Andhra Pradesh. The amount according to the petitioner is Rs.16,90,41,709/-. A Show Cause Notice dated 08.04.2020 was issued calling upon the petitioner, as to why the refund claim should not be rejected on the ground that the refund claim is time barred as per Section 54. A reply came to be submitted by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebruary, 2020 is barred by limitation and in so far as the other claims are concerned, he would submit that no material has been placed in support of the same. For all the aforesaid reasons, Sri Suresh Kumar Routhu, learned Senior Standing Counsel would submit that there are no merits in the writ petition, and the same is liable to be dismissed. 6. The point that arises for consideration is, whether the application made by the petitioner is barred by limitation and whether all the documents as required are filed along with the said refund applications? 7. It is no doubt true that Section 54 of the CGST Act, 2017 deals with Refund of Tax . It is also not in dispute that the said application must be made within a period of two years from the relevant date in such form and manner prescribed. But, at the same time, it is to be noted that the Government of India, Ministry of Finance issued a Circular dated 25.09.2021 on this aspect. The subject in the said Circular relates to Refund of Tax specified in Section 77(1) of CGST and Section 19(1) of IGST Act. It would be just and proper to refer the Circular dated 25.09.2021, which reads as under:- Circular No.162/18/2021-GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in such manner and subject to such conditions as may be prescribed. (2) A registered person who has paid central tax and State tax or Union territory tax, as the case 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. Dealing with the word subsequently held in the two Sections referred to above, a clarification was given, which is in Para-3 of the said Circular. The same reads as under:- 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 result of any adjudication, appellate or any other proceeding or whether the refund under the said sections is also available when the inter-State or intra-State supply made by a taxpayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce of this sub-rule, be filed before the expiry of 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-Central 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. 9. A reading of the Circular No.162/18/2021-GST and Column No.3 of 4.3 relating to refund claim, it is clear that if A has paid tax under a correct head before issuance of Notification No.35/2021-Central Tax, dated 24.09.2021, the last date for filing refund applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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