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Case Law Details

Case Name : Gajraj Vahan Private Limited Vs State of Jharkhand (Jharkhand High Court)
Appeal Number : W.P (T) No. 1801 of 2021
Date of Judgement/Order : 02/02/2023
Related Assessment Year :

Gajraj Vahan Private Limited Vs State of Jharkhand (Jharkhand High Court)

As per the amended Rule 89 (1A) of CGST Rules, 2017 and Circular dated 25.09.2021, the limitation period for seeking refund would be two years from the date of the instant notification i.e. 24.09.2021. However, in the face of rejection order, petitioner cannot make a fresh application, though the instant amendment and the notification beneficially applies to his case also.

FULL TEXT OF THE JUDGMENT/ORDER OF JHARKHAND HIGH COURT

Learned counsel for the petitioner has placed a circular no. 162/18/2021-GST dated 25.09.2021 issued by the CBIC on the subject – clarification in respect of refund of tax specified in section 77(1) of the CGST Act and Section 19(1) of IGST Act-Reg. Learned counsel for the petitioner submits that Sub Rule (1A) has been added to Rule 89 of CGST Rules, 2017 which reads as under:

“(1A) Any person, claiming refund under section 77 of the Act of any tax paid by him, in respect of a transaction considered by him to be an intra-State supply, which is subsequently held to be an inter-State supply, may, before the expiry of a period of two years from the date of payment of the tax on the inter-State supply, file an application electronically in FORM GST RFD-01 through the common portal, either directly or through a Facilitation Centre notified by the Commissioner:

Provided that the said application may, as regard to any payment of tax on inter-State supply before coming into force of this sub-rule, be filed before the expiry of a period of two years from the date on which this sub-rule comes into force.”

2. Petitioner in this case had deposited the tax on 14.02.2020 whose refund was rejected as time barred by the impugned order dated 24.04.2020. The instant circular gives answers to different illustrations of facts scenario under para 4.3 which is quoted hereunder:

“4.3 Application of sub-rule (1A) of rule 89 rad with section 77 of CGST Act/section 19 of the IGST Act is explained through following illustrations.

A taxpayer “A” has issued the invoice dated 10.03.2018 charging CGST and SGST on a transaction and accordingly paid the applicable tax (CGST and SGST) in the return for March, 2018 tax period. The following scenarios are explained hereunder:

Sl. No.

Scenario Last date for fling the refund claim
1. Having realized on his own that the said transaction is an inter-State supply, “A” paid IGST in respect of the said transaction on 10.05.2021. Since “A” has paid the tax in the correct head before issuance of
notification No. 35/2021- Central Tax dated 24.09.2021, the last date for filing refund application in FORM GST RFD-01 would be 23.09.23 (two years from date of notification)
2 Having realized on his own that the said transaction is an inter-State supply, “A” paid IGST in respect of the said transaction on 10.11.2021 i.e. after issuance of notification No. 35/2021- Central Tax dated 24.09.2021 Since “A” has paid the correct tax on 10.11.2021, in terms of rule 89 (1A) of the CGST Rules, the last date for filing refund application in FORM GST RFD-01 would be 09.11.2023 (two years from the date of payment of tax under the correct head, i.e.
integrated tax)
3 Proper officer or adjudication authority or appellate authority of “A” has held the transaction as an inter-State supply and according, “A” has paid the IGST in respect of the said transaction on
10.05.2019
Since “A” has paid the tax in the correct head before issuance of notification No. 35/2021- Central Tax dated 24.09.2021, the last date for filing refund application in FORM GST RFD-01 would be 23.09.23 (two years from date of notification)
4. Proper officer or adjudication authority or appellate authority of “A” has held the transaction as an inter-State supply and accordingly, “A” has paid the IGST in respect of the said transaction on 10.11.2022 i.e. after issuance of
notification No. 35/2021- Central Tax dated 24.09.2021
Since “A” has paid the correct tax on 10.11.2022, in terms of rule 89(1A) of the CGST Rules, the last date for filing refund application in FORM GST RFD-01 would be 09.11.2024 (two years from the date of payment of tax under the correct head, i.e.
integrated tax)

3. Now, as per the amended Rule 89 (1A) of CGST Rules, 2017 and Circular dated 25.09.2021, the limitation period for seeking refund would be two years from the date of the instant notification i.e. 24.09.2021. However, in the face of rejection order, petitioner cannot make a fresh application, though the instant amendment and the notification beneficially applies to his case also.

4. Learned counsel for the Respondent CGST prays for and is allowed three weeks’ more time, by way of last indulgence, to file counter affidavit. The issue raised above should be specifically answered by the Respondent CGST.

5. Matter be listed on 01.03.2023.

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