The main legal point established in the judgment is that an application for refund accompanied by the required documentary evidences cannot be ignored for the purposes of limitation, and Rule 90(3) cannot be applied in a manner that renders a taxpayer's application as non est if it is not deficient in material particulars.

JUDGMENT

Vibhu Bakhru, J. (Oral)

1. The petitioner has filed the present petition impugning an order dated 25.11.2021 passed by the Additional Commissioner CGST Appeals-II (the Appellate Authority), whereby the petitioner's appeal against an order dated 29.04.2020 passed by the Adjudicating Authority was rejected.

2. In addition, the petitioner impugns the validity of Rule 90(3) of the Central Goods and Services Tax Rules, 2017 (hereafter 'the Rules'). The petitioner also assails Paragraph 12 of Circular No. 125/44/2019 dated 18.11.2019 as being ultra vires Section 54 of the Central Goods and Services Tax Act, 2017 (hereafter 'the CGST Act').

3. The petitioner is essentially aggrieved by the denial of his request for refund of GST amounting to Rs.2,63,98,462/-.

4. The petitioner claims that excess tax to the aforesaid extent was paid for the month of December, 2017 and the petitioner is entitled to refund of the said amount.

5. The petitioner has explained that there was an error on its part in reporting the sales for the aforesaid month. The petitioner states that it had raised an invoice for carrying out the work of the NFS Project, which involved laying of an alternate communication network for Defence Services. The petitioner had also deposited the Goods and Services Tax amounting to Rs. 18,60,35,829/- and had reported the same in its returns (GSTR-1 and GSTR- 3B) filed for the month of December, 2017.

6. Thereafter, the petitioner received a letter dated 22.02.2018 from the Department of Telecommunications (DOT) clarifying that the amount of Rs. 104,65,11,628/- paid to the petitioner was inclusive of taxes. It is the petitioner's case that on receipt of the said letter, it realised that the calculation of GST was erroneous in as much as the petitioner had assumed that amount received was exclusive of GST, which would be paid over and above the specified amount.

7. In view of the clarification from DOT that the amount received by the petitioner was inclusive of taxes, the petitioner reworked his tax liability and found that it was required to pay a sum of Rs.15,96,37,367/- as GST and it had erroneously paid a sum of Rs.2,63,98,462/- in excess of its liability.

8. In view of the above, the petitioner filed an application (in Form GST RFD 01) on 17.01.2020 seeking refund of the excess payment of tax amounting to Rs.2,63,98,462/-.

9. The Adjudicating Officer issued a Deficiency Memo dated 31.01.2020 (in Form GST RFD 03) seeking certain other documents.

10. The said Deficiency Memo is set out below:

[IMG]

11. The petitioner claims that it responded to the said Deficiency Memo by submitting the clarifications online.

12. There is some controversy in respect of the response to the said Deficiency Memo. The acknowledgment on record indicates that it was acknowledged as a fresh application (in Form GST RFD 01).

13. It appears from the above that the petitioner had uploaded the documents online in the said format and therefore, the same was construed as an application for refund.

14. Thereafter, by an order dated 29.04.2020, the petitioner's application was rejected on the ground that the same was beyond the period of limitation.

15. A plain reading of the said order indicated that the clarifications submitted by the petitioner on 10.02.2020 (in Form GST RFD 01) was treated as the application for refund. Since the same was beyond the period of two years from the date of filing the return (which was filed on 22.01.2018), the petitioner was denied its claim for refund of excess tax.

16. The petitioner appealed the said order before the Appellate Authority, which was rejected by the impugned order 25.11.2021. The Appellate Authority upheld the order passed by the Adjudicating Authority.

17. The reasons stated by the Appellate Authority in the impugned order indicates that the Appellate Authority had proceeded on the basis that the petitioner had filed the first online refund claim along with documents on 10.02.2020.

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