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Case Title |
BA Continuum India Pvt Ltd vs Union of India and others. |
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Court |
Bombay High Court |
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Honorable Judges |
Justice Ujjal Bhuyan & Justice Abhay Ahuja |
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Citation |
2021 (3) GSTPanacea 23 HC Bombay |
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Judgement Date |
08-March-2021 |
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Council for Petitioner |
Prakash Shah Jas Sanghavi Prasad Paranjpe Anil Balani |
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Council for Respondent |
Jyoti Chavan |
The Bombay High Court bench of Justice Ujjal Bhuyan & Justice Abhay Ahuja has held that no application for refund shall be rejected without giving an applicant an opportunity of being heard, the same cannot be substituted by telephonic conversations and exchange of e-mails .
Bombay High Court - FACTS OF THE CASE
Petitioner has claim five refund applications of input tax credit covering five different periods claiming total refund of Rs.9,58,13,338.00 under export of services without payment of integrated tax. As per impugned orders dated 26.06.2020 refund was rejected. Petitioner challenged the Impugned Refund rejection Order.
It was alleged that facilitating supply of services between two persons on account of Bank of America. Thus, the petitioner was an intermediary under the IGST Act. Hence place of supply shall be location of the supplier of services i.e., India. As the place of said supply is India then the said supply of services would not be eligible to be treated as export of services as per the IGST Act
Petitioner is engaged in the business of providing information technology and information technology enabled services to customers located outside India. It has its registered office at Andheri (East), Mumbai.
Petitioner had entered into a master agreement dated 03.05.2004 with Bank of America National Association (BANA) to provide for information technology and information technology enabled services by the petitioner to BANA.In order to provide the mentioned output services, petitioner received various input services and availed the credit of tax paid thereon. According the services provided by it to BANA qualifies as “export of service” as well as “zero-rated supply” as per the Integrated Goods and Services Tax Act, 2017(IGST Act)
Petitioner claimed that no opportunity of hearing was given to the petitioner before rejecting the refund claim.
Bombay High Court - COURT HELD
Considering the facts as recorded, held that there were some telephonic conversations between officials working and the tax consultants of the petitioner. In any event, no record of such telephonic conversations have been maintained. What transpired in such conversations is also not known. As per the proviso, an application for refund shall not be rejected without giving the applicant an opportunity of being heard. opportunity of being heard, same cannot be substituted by telephonic conversations and exchange of e-mails
Thus impugned orders dated 26.06.2020 was kept set aside. Applications of the petitioner for remand shall now be considered afresh by another proper officer after giving an opportunity of being heard to the petitioner.
Thus Writ petition is accordingly allowed
Bombay High Court - ANALYSIS OF THE JUDGEMENT
It is legal mandate that if an application for refund is to be rejected, the same can only be done after giving the applicant an opportunity of being heard. The expression ‘opportunity of being heard’ is not an expression of empty formality. When the law requires that no application for refund shall be rejected without giving an applicant an opportunity of being heard, the same cannot be substituted by telephonic conversations and exchange of e-mails. Its violation of the principles of natural justice which has rendered the impugned orders void.
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