TMI Blog2022 (12) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... he disputed amount, that are paid to them, due to inadvertent error while keying the name of M/s.Vodafone Mobile Services Limited, Kandlakoya village, Medchal Mandal, Telangana State - As the Circular of the year 2019 restricts only electronic filing and as the contention of the respondents that the claim of the petitioner is barred by limitation is not acceptable, the respondents cannot retain the amount, which was paid by the petitioner. The Writ Petition is allowed. - Writ Petition No.10637 of 2021 - - - Dated:- 9-12-2022 - Hon'ble Sri Justice C. Praveen Kumar And Hon'ble Sri Justice A.V.Ravindra Babu For the Petitioner : J.N Venkata Suresh Kumar For the Respondent : B V S Chalapati Rao ORDER: PER HON'BLE SRI JUSTICE A.V.RAVINDRA BABU This Writ Petition, under Article 226 of the Constitution of India, came to be filed by the petitioner for the following relief: ...................... to issue an appropriate writ, order or direction, more in the nature of Writ of Mandamus, setting aside the communication of the Superintendent of Central GST, Bheemavaram Range vide his Reference No: OC No:-151/2021 dated 26-2-2021 and directing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturned in Form GSTR 3B for the tax period of April, 2018 and the petitioner furnished details of such invoices in Form GSTR-1 for June, 2018 and they are returned in both Form GSTR-1 for the quarter ending 30.06.2018. 4. While keying in the said details and returns information in the GST common portal, the GSTIN of M/s.Vodafone Mobile Services Limited, Mumbai i.e., 27AAACS4457Q1ZQ inadvertently keyed in instead of the GSTIN of M/s.Vodafone Mobile Services Limited, Kandlakoya, Medchal Mandal, Rangareddy District, Telangana. In reality, they are inter-state supplies of cable laying services in the State of Telangana. This is purely an inadvertent mistake committed in the tax periods of the GST regime. Because of this human error, the actual recipient of cable laying services from the petitioner at Telangana is not able to claim the credit of the IGST paid by the petitioner. After realising this mistake, the petitioner tried to rectify this mistake in May, 2020 but in vain. The GST common portal is not permitting the same, because the time available for rectification of such mistake is only up to 20.10.2019. The petitioner realized this mistake in May, 2020 when M/s.Vodafone Mobil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner got filed a reply-affidavit refuting the contention of the respondents. 8. Now, in deciding this Writ Petition, the point that arises for consideration is, whether a Writ of Mandamus to set-aside the communication of the Superintendent of CGST, Bhimavaram Range, dated 26.02.2021, and consequently to direct the respondents to permit the petitioner to rectify the details of the recipient of the service in the form of GSTR-1 to enable M/s.Vodafone Mobile Services Limited, Kandlakoya, Telangana State or to refund the sum of Rs.7,87,328=78 to the petitioner can be issued? 9. Learned counsel for the petitioner would contend that there is no dispute that a human error was committed in keying the GST common portal. The petitioner could realize the mistake only in May, 2020 and thereafter made several attempts to rectify the mistake but in vain as the GST common portal did not allow for such rectification. Accordingly, when the petitioner addressed a letter, dated 17.02.2021, raising various contentions, the second respondent issued the impugned reply, dated 26.02.2021, directing the petitioner to follow the Circular, dated 18.11.2019. It is impracticable for the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MH/0373/2021 and Laxmi Organic Industries Limited v. Union of India and others WP No.7861/2021, Dt.30.11.2021 , a decision of the Hon ble Apex Court in Mafatlal Industries (first supra), a decision of the High Court of Telangana in Vasudha Bommireddy, Hyderabad and another v. Assistant Commissioner of Service Tax, Hyderabad 2020-TIOL-397-HC-AP-ST and a decision of the High Court of Gujarat in M/s. Cosmol Energy Private Limited v. State of Gujarat 2021-TIOL-1334-HC-AHM-GST . 11. Sri Suresh Kumar Routhu, learned Senior Standing Counsel for CBIT, appearing for the respondents, would contend that it is the duty of the petitioner to follow the procedure as contemplated in the Circular of the year 2019 and his claim falls under Section 54 of the CGST Act, which prescribe the period of limitation of two years and the petitioners claim is barred by limitation. According to him, various citations, relied upon by learned counsel for the petitioner, will have no application to the present situation and in support of his contention he would rely upon a decision of the Hon ble Apex Court in Union of India and others v. VKC Footsteps India Private Limited (2022) 2 SCC 603 . He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, intimation, reply, declaration, statement or issuance of the said notice, order or certificate in such Forms as appended to the rules. 15. Turning to the impugned communication sent by the respondents to the petitioner, it restricts claims of refund only through online. Para No.3 of the Circular, dated 18.11.2019, reads as follows: 3. With effect from 26.09.2019, the applications for the following types of refunds shall be filed in FORM GST RFD 01 on the common portal and the same shall be processed electronically: a. Refund of unutilized input tax credit (ITC) on account of exports without payment of tax; b. Refund of tax paid on export of services with payment of tax; c. Refund of unutilized ITC on account of supplies made to SEZ Unit/SEZ Developer without payment of tax; d. Refund of tax paid on supplies made to SEZ Unit/SEZ Developer with payment of tax; e. Refund of unutilized ITC on account of accumulation due to inverted tax structure; f. Refund to supplier of tax paid on deemed export supplies; g. Refund to recipient of tax paid on deemed export supplies; h. Refund of excess balance in the electronic cash ledger; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution bench dealt with the issue regarding the claim of the refund of duty under the Customs and Central Excise and Salt Act. 20. The principle that is relied upon by learned counsel for the petitioner in this regard is doctrine of unjust enrichment. In the above said decision, the Hon ble Supreme Court referring to Section 72 of the Contract Act, held that in such cases assesses can either file a suit under Section 72 of the Contract Act or invoke writ jurisdiction of the High Court under Article 226 of the Constitution. 21. In Vasudha Bommireddy, Hyderabad (fifth supra), the High Court of Telangana was dealing with a case where initially the petitioners purchased some office space under registered sale deed and the fourth respondent therein obtained service tax payable in support of sale of the property on the ground it is considered as commercial construction. Later, the petitioners realized that service tax cannot be levied on that, as such they claimed refund of the amount. Dealing with the same and relying upon a decision of the Madras High Court in Natraj and Venkat Associates v. Assistant Commissioner, Service Tax Chennai (2009) 19 STJ 353 (Madras) , the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed manually and further permitted the petitioner to file a fresh application for refund manually within fortnight from that date and that the Superintendent shall process the same and ensure that application is taken to its logical conclusion in accordance with law. 24. Having regard to the above decisions, we would like to make it clear that, admittedly, when Rule 97A of the CGST Rules also permits manual filing restriction in Circular, dated 18.11.2019, seeking refund by electronic mode only may not be proper. In the light of the principles stated in the above decisions, the amounts that were paid by the petitioner furnishing the incorrect details cannot be taken as a tax due to the respondents, legally. When such is the scenario, the respondents cannot contend that the claim, if any, of the petitioner, is barred by limitation. In the light of the constitutional bench decision of the Hon ble Apex Court in Mafatlal Industries (first supra), one cannot enrich themselves under Section 72 of the Contract Act and they are bound to return the amounts which were paid wrongfully. Hence the contention of learned Standing Counsel for the respondents that in view of decision of the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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