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Petitioner |
Radhemani & Sons |
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Respondent |
Addl. Commr. (Appeals) CGST & CE |
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Decision by |
Chhattisgarh High Court |
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Date of Order/Judgement |
7- December- 2021 |
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Citation No. |
W.P. (T) No. 213 of 2021 2021 (12) GSTPanacea 1 HC Chhattisgarh |
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Hon’ble Judge |
Justice Sanjay S. Agrawal |
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Decision |
In Favour of Assessee |
Matter Remitted Back-Chhattisgarh High Court set aside the impugned order and the matter is remitted back to the concerned appellate authority with a direction to decide the same afresh in the light of the circular issued on 25-9-2021 in accordance with law.
Matter Remitted Back-Facts of the Case
Matter Remitted Back-The Petitioner-M/s. Radhemani And Sons (A Proprietorship Firm) had filed a refund claim of Rs. 12,69,255 as per the provisions prescribed under Rule 89 (1)of CGST Rules, 2017 on account of ‘Excess payment of IGST in February, 2018 in GSTR-3B Return’ for the tax period February, 2018 in RFD-01.
The said application was filed by the Petitioner on 18-3-2020 and after considering the said application, a SCN, dated 31-3-2020 was issued by the Deputy Commissioner in Form GST-RFD-08 and since the Petitioner has failed to submit any reply with regard to the said SCN, the Deputy Commissioner-cum-Adjudicating Authority has, therefore, rejected the said application of the Petitioner as made under the said provision vide Order, dated 23-4-2020.
Being aggrieved with the aforesaid order of the Adjudicating Authority, an appeal was preferred by the Petitioner before the Additional Commissioner (Appeals) CGST and Central Excise, Raipur as per the provisions prescribed under section 107 of the CGST Rules, 2017.
Arguments Before Court
Matter Remitted Back-Petitioner’s Contention
Matter Remitted Back-Petitioner has filed this petition and learned counsel for the Petitioner, while inviting attention to the Circular, which was issued by Respondent on 25-9-2021, submits that the word ‘subsequently held’ as depicted from the provisions prescribed under section 77 of the CGST Act, 2017 and section 19 of IGST Act, 2017 was clarified by interpreting as under :–
Interpretation of the term ‘subsequently held‘
whether refund claim under the said sections is available only if supply made by a taxpayer as inter-State or intra-State, is subsequently held by tax officers as intra State and inter-State respectively.
The term ‘subsequently held’ in section 77 of CGST Act,2017 or under section 19 of IGST Act, 2017 covers both the cases where the inter-State or intra-State supply made by a taxpayer, is either subsequently found by taxpayer himself as intra-State or inter-State respectively or where the inter-State or intra-State supply made by a taxpayer is subsequently found/held as intra-State or inter- State respectively by the tax officer in any proceeding.
Consequently, refund claim under the said sections can be claimed by the taxpayer in both the above mentioned situations, provided the taxpayer pays the required amount of tax in the correct head.
Matter Remitted Back-Respondent’s Argument
Matter Remitted Back-Senior Standing Counsel for the respondents while considering the provisions prescribed under section 77 of the CGST Act, 2017 and section 19 of the Integrated Goods and Services Tax Act, 2017, observed that a refund in terms of section 77 of CGST Act, 2017 and section 19 of the IGST Act,2017 would arise only when a supply considered as intra-State supply is so held by any authority as inter-State supply or where a supply considered inter-State by a supplier is so held by any authority as intra-Sate supply.
It, thus, held that the refund under these provisions would not arise suo motu and therefore, the appellate authority has rejected the appeal while affirming the order of the Adjudicating Authority as passed on 23-4-2020.
Chhattisgarh High Court Held
Matter Remitted Back-While referring to the aforesaid circular which is clarificatory in nature of the word ‘subsequently held’, it is contended by learned counsel for the Petitioner that since the said word referred to the aforesaid provisions of section 77 of the CGST Act, 2017 read with section 19 of IGST Act, 2017, has been interpreted by observing inter alia that the refund under the said sections is also available when the inter-State or intra-State supply made by a taxpayer, is subsequently found by taxpayer himself as intra-State and inter-State respectively.
Therefore, the matter may be remitted to the concerned appellate authority for the consideration of his claim/application made under sub-rule (1) of Rule 89 of the Rules, 2017 for refund of Rs.12,69,255 afresh in the interest of justice.
In conclusion, the order impugned is accordingly set aside and the matter is remitted back to the concerned appellate authority with a direction to decide the same afresh in the light of the circular issued on 25-9-2021 in accordance with law.
Therefore, with the aforesaid observation, the petition stands disposed of.
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