TMI Blog2023 (8) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (7) of Section 54 of the CGST Act, is required to be counted from the said date. It is clear from the deficiencies as mentioned that the proper officer had noticed certain discrepancies in the documents. In addition, he also required the petitioner to provide certain documents in order to verify its claims for refund. It is also apparent that some of the documents demanded were not relevant as the petitioner s claim was for refund of IGST and not unutilised ITC. The nature of the deficiencies as set out in deficiency memo no. 2 clearly indicate that the application filed by the petitioner was not incomplete in terms of Rule 89(2) of the CGST Rules. Sub-rules (3) and (4) of Rule 89 of the CGST Rules are not applicable in the facts of the present case. The petitioner had, in terms of Clause (c) of Sub-rule (2) of Rule 89 of the CGST Rules, submitted a statement containing the number and date of invoices and the relevant Bank Realisation Certificates/Foreign Inward Remittance Certificates. It was also accompanied by the necessary declaration as specified. In terms of Section 54(1) of the CGST Act, an application is required to be made in the prescribed form and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication is also required to be filed within the stipulated period of two years from the relevant date. Thus, notwithstanding that the taxpayer s first application was within the period of limitation, in terms of the impugned Circular, the taxpayer s claim for refund is liable to be rejected as barred by limitation, if the fresh application, pursuant to a deficiency memo, is filed after the period of limitation as specified under Section 54 of the CGST Act. 3. The petitioner assails the impugned Circular as well as Rule 90(3) of the Central Goods and Services Tax Rules, 2017 (hereafter the CGST Rules ) as unconstitutional and ultra vires the CGST Act. Factual Context 4. The petitioner is a non-profit company registered in the State of Delhi for the purposes of Goods and Services Tax and has been assigned, GSTIN 07AABCN9308A1ZT. The petitioner is, inter alia, engaged in the export of internet services, peering of internet service providers and routing of domestic internet traffic in India. The petitioner additionally manages the .IN registry which offers the .IN domain name. 5. On 17.10.2019, the petitioner filed a claim for refund of ₹51,28,263/- being the IG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the two-year period as prescribed, and thus was liable to be processed. Respondent no. 2 thereafter passed the impugned order, relying upon paragraph 12 of the impugned Circular. Reasons and conclusion 11. The provisions for refund are contained in Chapter 11 of the CGST Act. Sub-section (1) of Section 54 of the CGST Act provides that an application for refund shall be made before the expiry of two years from the relevant date. Sub-section (4) to Section 54 of the CGST Act provides that an application shall be accompanied by such documentary evidence as may be prescribed. The relevant extract of Section 54 of the CGST Act Sub-sections (1), (4), (7) and (8) are set out below: 54. Refund of tax. (1) Any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed: Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 49, may claim such refund in the return furnished under section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per officer is satisfied that the amount claimed is refundable, he is required to deposit the same in a fund referred to in Section 57 of the CGST Act or be paid to the applicant, if the condition of Sub-section (8) of Section 54 of the CGST Act are satisfied. 13. In terms of Section 54(1) of the CGST Act, an application for refund is required to be made within a period of two years from the relevant date, which is defined in Explanation (2) to Section 54 of the CGST Act. 14. The application is required to be made in such form and manner as may be prescribed. In terms of Clause (a) of Sub-section (4) of Section 54 of the CGST Act, the application is also required to be accompanied by such documentary evidence as may be prescribed. 15. The form and manner of making an application for refund is prescribed under the CGST Rules. Rule 89 of the CGST Rules provides that an application for refund shall be made electronically in form GST RFD-01 through the common portal either directly or through a Facilitation Centre notified by the Commissioner. In accordance with the provisions of Section 49(6) of the CGST Act, an application for refund relating to the balance in the electronic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not availed the input tax credit of the tax paid by the supplier of goods or services or both, in a case where the refund is on account of supply of goods or services made to a Special Economic Zone unit or a Special Economic Zone developer; (g) a statement containing the number and date of invoices along with such other evidence as may be notified in this behalf, in a case where the refund is on account of deemed exports; (h) a statement containing the number and the date of the invoices received and issued during a tax period in a case where the claim pertains to refund of any unutilised input tax credit under sub-section (3) of section 54 where the credit has accumulated on account of the rate of tax on the inputs being higher than the rate of tax on output supplies, other than nil-rated or fully exempt supplies; (i) the reference number of the final assessment order and a copy of the said order in a case where the refund arises on account of the finalisation of provisional assessment; (j) a statement showing the details of transactions considered as intra-State supply but which is subsequently held to be inter-State supply; (k) a statement showing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectronically, clearly indicating the date of filing of the claim for refund and the time period specified in sub-section (7) of section 54 shall be counted from such date of filing. (2) The application for refund, other than claim for refund from electronic cash ledger, shall be forwarded to the proper officer who shall, within a period of fifteen days of filing of the said application, scrutinize the application for its completeness and where the application is found to be complete in terms of sub-rule (2), (3) and (4)of rule 89, an acknowledgement in FORM GST RFD-02 shall be made available to the applicant through the common portal electronically, clearly indicating the date of filing of the claim for refund and the time period specified in sub-section (7) of section 54 shall be counted from such date of filing. (3) Where any deficiencies are noticed, the proper officer shall communicate the deficiencies to the applicant in FORM GST RFD-03 through the common portal electronically, requiring him to file a fresh refund application after rectification of such deficiencies. 18. It is apparent from the above that once an application is complete in terms of Sub-rule (2), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f export invoices not uploaded in order to ascertain and co-relate the correct particulars viz nature of services supplied and value thereof. 3. The taxpayer has not uploaded the GST-RFD01A for the tax period of October 2017-18 (tax period) for which refund is being claimed, in the absence of same calculation of refund amount claimed could not be verified. 4. The tax period has indicated 54 nos. of record of export invoices in the GSTR-01 whereas in the statement 2 particulars of all the 54 export invoices have not been mentioned. 5. In GSTR-3B for the tax period/ month of October-2017-18, in table 3.1(B) total turnover of outward taxable supplies (zero rated) shown to be of nil value whereas in the table 6A GSTR-01 total taxable value of export invoices is of Rs. 28906700/-. The taxpayer is required to clarify the above-mentioned discrepancy. 6. In the table 6 of GSTR-3B, computation of tax is against the total taxable value of Rs. 51267994/- only which happens to be the declared outward taxable supplies (ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in both RFD 01 A and acknowledgement in the same and has been debited in electronic credit ledger on the date of claim. 13. The taxpayer has not filed information about any demand which had not been stayed and is pending. 14. The taxpayer has not filed an undertaking to the effect that the required information in GSTR-3B, GSTR-1, GSTR RFD-01A has been furnished correctly. 15. The taxpayer has not filed trading account for the relevant period i.e. for the month of Oct 2017. 16. The taxpayer has not filed proof of receipt and delivery of goods/ services. 17. The taxpayer has not filed any other document that verify transition or entry in any books of account. 18. The taxpayer has not filed Copy of purchase orders issued by the foreign buyers. 19. The taxpayer has not filed marked copy of bank statement to indicate making of payment against purchases/ supplies received and receipt o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances held as under: 28. We are of the view that 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. 29. 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 ignored for the purposes of limitation. The limitation would necessarily stop on filing the said application. This is not to say that the information disclosed may not warrant further clarification, however, that by itself cannot lead to the conclusion that the application is required to be treated as non est for the purposes of Section 54 of the CGST Act. It is erroneous to assume that the application, which is accompanied by the documents as specified under Rule 89(2) of the Rules, is required to be treated as complete only after the taxpayer furnishes the clarification of further documents as may be required by the proper officer and that too fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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