2022-TIOL-1187-HC-AHM-GST
Supernova Engineers Ltd Vs Joint Commissioner
GST - Petitioner prays for setting aside the order of the Joint Commissioner (Appeals) and allowing the refund claim that was dismissed as being barred by limitation - Last date for filing refund application for the month of February 2018 as per rule 54 was two years from the due date of furnishing GSTR 3B returns viz. 20.03.2020 - Refund application was filed on 02.05.2020 and hence rejected as time barred - Petition filed.
Held: During the pendency of this Special Civil Application, the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs, issued notification No. 13/2022-Central Tax dated 05.07.2022, whereby the computation of period of limitation for filing refund application under Section 54 of the Act came to be excluded from 01.03.2020 to 28.02.2022 - In the present case, the refund application was filed on 02.05.2020, however in view of the above notification, in particular clause (iii) thereof, the period from 01.03.2020 to 28.02.2022 is excluded from the limitation period and the petitioner would be entitled to the benefit of the same - Competent authority is, therefore, directed to reconsider the claim for refund - Petition disposed of [para 4, 5]
- Petition disposed of: GUJARAT HIGH COURT
2022-TIOL-1186-HC-MAD-GST
India Yamaha Motor Pvt Ltd Vs Asstt. Commissioner
GST - Petitioner has challenged an order dated 10.04.2019 wherein the respondent calls upon it to remit interest of a sum of Rs.5,00,00,000/- (approx.) for belated remittance of GST for the period from July, 2017 to October, 2017 - The levy of interest u/s 50 of the Act, arose from the fact that when the petitioner filed a GSTR 3B return for the month of July, 2017, there was an inadvertent error whereby the data pertaining to its plant at Faridabad was included instead of data pertaining to the Chennai plant - This swap resulted in a short disclosure of liability for the period July to October 2017 leading to the levy of interest - The petitioner had filed a grievance petition seeking modification of the return for the month of July 2017 that had not been immediately disposed/addressed by the authorities - Petitioner has admittedly not filed monthly returns for the months August to October 2017, on the premise that the proper ascertainment of tax liability for the aforesaid months would be dependent upon the adjudication of its grievance petition as above - Remittance of taxes for the subsequent periods are admittedly belated and the specific argument of the petitioner is that it had sufficient ITC credit in both the electronic cash ledger ('ECR') as well as the electronic credit register (' ECrC ') and, therefore, there had been no loss caused to the revenue and hence no justification to levy interest since the interest is only compensatory in nature - Taking note of the amendments to Section 50 of the Act, the respondent has recomputed the interest payable reducing the same from Rs.5,00,00,000/- (approx.) to an amount of Rs.1,19,00,000/- inasmuch as credit to the extent of cash payments effected by the petitioner has been granted to the petitioner - However, it is the submission of the assessee that the same logic that has merited acceptance by GST authorities in relation to the cash balance, should apply in the context of credit balance as well.
Held : Court in Refex Industries Limited = 2020-TIOL-382-HC-MAD-GST took note of the amendment to Section 50 that had been inserted by Act No.23 of 2019 and concluded that the proviso should operate retrospectively and thus, in a case where an assessee had sufficient cash credit, there is no question of the Department requiring to be compensated, since funds were available with it, to the credit of that assessee - While payments in cash denotes the actual availability of cash to the credit of the assessee concerned/petitioner, deposits standing to the credit of an assessee/petitioner, do not necessarily, and in all circumstances, imply that the resources to back such credit up, are within reach of the Department - This is all the more in a case such as the present where the petitioner has not actually filed the returns and effected a debit to the ECR and EcrR to the extent of the tax payable - Thus, credit cannot be equated with cash remittances - The language used in s.50 is categoric to the effect that it is only when a remittance is effected by way of debit, that an assessee would be protected from the levy of interest - Acceding to the stand of the petitioner would result in rewriting the proviso, to the effect that, even mere availability of credit would insulate the petitioner from interest, which, in my view, is impermissible - That apart, there is some force to the submissions of the respondents that credit cannot, prior to availment be taken to construe the payment - There are any number of situations where credit may be found to have been availed erroneously or on a mistaken interpretation of law - Thus, it would be risky, from the view-point of the revenue, to state as a general proposition that the mere availability of electronic credit should be assumed to be utilization that would insulate the petitioner from the levy of interest - Inasmuch as this issue is held adverse to the petitioner - Writ Petition is partly allowed, to the extent of the relief granted under order dated 18.01.2021 and the demand, as per aforesaid order, stands confirmed: High Court [para 10, 11, 14, 16, 21, 22]
- Petition partly allowed: MADRAS HIGH COURT
