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TMI Blog2025 (3) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2022 herein marked as Annexure-B. iii) Issue a writ of a writ of mandamus or direction in the nature of writ of mandamus directing the respondent No.2 to issue the refund claimed by the petitioner for the tax period May 2020 aggregating to a sum of Rs. 3,26,64,475/- as per the substituted formula provided in Notification No. 14/2022 Central Tax dated 05.07.2022, together with interest. iv) And pass such other orders as this Hon'ble Court deems fit and proper in the interest of justice and equity." 2. Heard learned senior counsel Sri. Shankar. A., for Sri. Madhusudhan. U.A., learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. 3. A perusal of the material on record will indicate that in relation to the very same petitioner, under identical circumstances in W.P.No.2490/2023 dated 28.08.2024, this Court passed the following order: "ORAL ORDER In this petition, petitioner seeks for the following reliefs:- "i) Issue a writ of Certiorari or direction in the nature of a writ or certiorari quashing the order passed by the Respondent No. 1 in Form GST-APL-04 dated 15.12.2022 under section 107 (11) of the Karnataka Goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 2019 dated 26.02.2021 herein marked as Annexure - B8. x) Issue a writ of Certiorari or direction in the nature of a writ or certiorari quashing the refund rejection order passed by the Respondent No.2 rejecting the refund claim of the petitioner in Form GST-RFD-06 for the tax period July 2019 dated 13.11.2021 herein marked as Annexure - B9 xi) Issue a writ of a writ of mandamus or direction in the nature of writ of mandamus directing the Respondent No.2 to issue the refund claimed by the petitioner for the March 2018, April 2018, May 2018, June 2018, August 2018, September 2018, October 2018, January 2019 and July 2019 aggregating to a sum of Rs. 20,22,19,265/- as per the substituted formula provided in Notification No. 14/2022-Central Tax dated 05.07.2022, together with interest. xii) And pass such other orders as this Hon'ble Court deems fit and proper in the interest of justice and equity." 2. Heard learned Senior counsel for the petitioner and learned counsel for the revenue and perused the material on record. 3. A perusal of the material on record will indicate that the petitioner is a joint venture between M/s. ITD Cementation India Limited and M/s. Ita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (119) of the CGST Act defines 'Works Contract' as under: "Works contract means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract." 7. A perusal of the impugned orders passed by the respondents will indicate that the refund claim of the petitioner has been rejected on two grounds, viz., firstly, that the business / activity being carried on by the petitioner was supply of services being construction within the meaning of Clause/Entry 5(b) of Schedule II to the CGST Act and not a composite supply in relation to a works contract as contemplated under Clause/Entry 6(a) of Schedule II to the Act and stood excluded from the refund mechanism in terms of Notification 15/2017-28.6.2017 and secondly, by virtue of Notification No. 20/2017-Central Tax(Rate) dated 22.08.2017, works contract relating to Metro which is the subject matter of the present petition was excluded by the respondents. 8. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejecting the refund claim of the petitioner deserve to be set aside and the refund claim of the petitioner deserves to be allowed. 11. Insofar as the rejection of the refund claim of the petitioner by the respondents by placing reliance upon the Notification No. 20/2017 dated 22.08.2017 is concerned, it is relevant to state that earlier, the revenue had issued a Notification bearing No. 15/2017 dated 28.06.2017 which specifically stated that no refund of unutilized ITC shall be allowed under sub-section (3) of Section 54 of the CGST Act in case of supply of services specified in sub-item (b) of Item 5 of Schedule - II of the CGST Act; it is pertinent to note that as per this Notification, only supply of services specified in Item 5(b) were excluded and services contemplated in Item 6(a) were not excluded from claim for refund; it followed therefrom that works contract provided in Item / Entry / Clause 6(a) were not excluded from the claim for refund and consequently, the petitioner would be entitled to refund as claimed in its refund application, which was erroneously rejected by the respondents by passing the impugned orders, which deserve to be set aside on this ground alone. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Central Goods and Services Tax Act, in case of supply of services 1[of construction of a complex, building or a part thereof, intended for sale to a buyer, wholly or partly, where the amount charged from the recipient of service includes the value of land or undivided share of land, as the case may be, except where the entire consideration has been received after issuance of completion certificate,where required, by the competent authority or after its first occupation, whichever is earlier], 2017. 2. This notification shall come into force with effect from the 1st day of July, 2017. [F. No.334/1/2017 -TRU] (Ruchi Bisht) Under Secretary to the Government of India ***************** NOTES:- 1. Substituted vide Notification No. 15/2023-Union Territory Tax (Rate) dated 19-10-2023 w.e.f. 20-10-2023 before it was read as, "specified in sub-item (b) of item 5 of Schedule II of the Central Goods and Services Tax Act" 14. The aforesaid Notification No. 15/2023 clarifies and elucidates the fact that refund of unutilized ITC is disallowed / excluded only in relation to construction activity intended for the purpose of sale in the real estate sector; in fact, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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