TMI Blog2023 (4) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... le 90(3) of the Rules and had proceeded on the basis that the said Rule provides for filing of a fresh refund application after rectification of deficiencies. And, the date for filing the fresh application was required to be considered for the purpose of limitation - Rule 90(3) cannot be applied in the manner as sought to be done by the Adjudicating Authority. Merely because certain other documents or clarifications are sought by way of issuing a Deficiency Memo, the same will not render the application filed by a taxpayer as non est. If the application filed is not deficient in material particulars, it cannot be treated as non est. If it is accompanied by the documentary evidences as mentioned in Rule 89(2) of the Rules, it cannot be ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Authority), whereby the petitioner s appeal against an order dated 29.04.2020 passed by the Adjudicating Authority was rejected. 2. In addition, the petitioner impugns the validity of Rule 90(3) of the Central Goods and Services Tax Rules, 2017 (hereafter the Rules ). The petitioner also assails Paragraph 12 of Circular No. 125/44/2019 dated 18.11.2019 as being ultra vires Section 54 of the Central Goods and Services Tax Act, 2017 (hereafter the CGST Act ). 3. The petitioner is essentially aggrieved by the denial of his request for refund of GST amounting to ₹2,63,98,462/-. 4. The petitioner claims that excess tax to the aforesaid extent was paid for the month of December, 2017 and the petitioner is entitled to refund of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Deficiency Memo dated 31.01.2020 (in Form GST RFD 03) seeking certain other documents. 10. The said Deficiency Memo is set out below: FORM-GST-RFD-03 [See rule 90(3)] Deficiency Memo To 07AABCB5576G1ZN (GSTIN/ UIN/ Temporary ID) M/s. Bharat Sanchar Nigam Limited H.C MATHUR LANE, JANPATH NEW DELHI - 110001. Subject: Refund Application Reference No. (ARN) AA070120034449K Dated 17.01.2020. Sir/Madam, This has reference to your above mentioned application electronically filed vide above mentioned ARN under section 54 of the CGST Act, 2017, read with Rule 89 of CGST Rules. Upon scrutiny of your application, certain deficiencies have been noticed below: Sr.No. Description 1. Reconciliation with outward supply in r/o GSTR-3B Vs. GSTR-1 for relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order before the Appellate Authority, which was rejected by the impugned order 25.11.2021. The Appellate Authority upheld the order passed by the Adjudicating Authority. 17. The reasons stated by the Appellate Authority in the impugned order indicates that the Appellate Authority had proceeded on the basis that the petitioner had filed the first online refund claim along with documents on 10.02.2020. 18. The petitioner s application filed on 17.01.2020 was ignored. Although it has not been expressly stated, it appears that the Appellate Authority had proceeded on the basis that it was appellant s case that it had filed the Form GST RFD 01 physically on 17.01.2020. The Appellate Authority reasoned that an application could only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed on to any other person, in a case where the amount of refund claimed does not exceed two lakh rupees: PROVIDED that a declaration is not required to be furnished in respect of the cases covered under clause (a) or clause (b) or clause (c) or clause (d) or clause (f) of sub-section (8) of section 54; (m) a Certificate in Annexure 2 of FORM GST RFD-01 issued by a chartered accountant or a cost accountant to the effect that the incidence of tax, interest or any other amount claimed as refund has not been passed on to any other person, in a case where the amount of refund claimed exceeds two lakh rupees: PROVIDED that a certificate is not required to be furnished in respect of cases covered under clause (a) or clause (b) or clause (c) or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round that its application filed on 17.01.2020 was deficient; it has done so on an erroneous assumption that it was filed physically and not online. 27. It is pointed out that the Adjudicating Authority had proceeded on the basis that it had communicated the deficiencies in Form GST RFD 03 on 31.01.2020 electronically and the said deficiency was resolved after the expiry of two years as stipulated in Section 54 of the CGST Act. The Adjudicating Authority had referred to Rule 90(3) of the Rules and had proceeded on the basis that the said Rule provides for filing of a fresh refund application after rectification of deficiencies. And, the date for filing the fresh application was required to be considered for the purpose of limitation. 28. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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