THE HON’BLE THE CHIEF JUSTICE SRI APARESH KUMAR SINGH AND THE HON’BLE SRI JUSTICE P.SAM KOSHY WRIT PETITION NO.35758 OF 2024

ORDER:

Heard Mr. Joseph Prabhakar, learned counsel representing Mr. S.Dinesh Kumar, learned counsel for petitioner on record and Mr. Vijhay K.Punna, learned Senior Standing Counsel for CBIC appearing for respondent No.1

2. The rejection of refund application vide order dated 09.09.2024 for the period from September, 2022 to November, 2022 passed by the respondent-Assistant Commissioner, Gachibowli GST Division, is under challenge in the present writ petition.

3. Learned counsel for petitioner has referred to an order dated 05.12.2023 passed in Appeal by the Commissioner (Appeals) for the period 01.01.2021 to 31.03.2021 and submitted that the impugned order is completely based on that order dated 05.12.2023 without independent application of mind by the Assistant Commissioner, GST–respondent. The order dated 05.12.2023 passed by the Commissioner (Appeals) has never been served upon the petitioner. It relates to the claim for refund of the period from 01.01.201 to 31.03.2021. It is submitted that in the absence of supply of copy of an order of the Commissioner (Appeals), thereby the refund sanctioned order passed in his favour has been set aside, the petitioner is not in a position to challenge the said decision before a higher forum. It is submitted that the observations of the learned Refund Sanctioning Authority – Deputy Commissioner, GST, would show that it is influenced by the order dated 05.12.2023 passed by the Commissioner (Appeals), relating to a different period from 01.01.2021 to 31.03.2021. Therefore, the prayer has been made that the impugned order may be set aside.

4. Counter-affidavit has been filed by the respondent opposing the prayer.

5. Upon hearing the learned counsel for petitioner and the respondent and after going through the impugned order and the relevant pleadings placed on record, we find that the rejection of refund application for the above period has been made after verification of the agreement and the services provided by M/s.ABB Global Industries and Services Private Limited. The learned Deputy Commissioner, after verification of invoices and agreements, has arrived at the conclusion that the present claim also relates to the same claim filed for the period 01.01.2021 to 31.03.2021, which was subject matter of order passed by the Commissioner (Appeals), dated

05.12.2023.

6. Learned counsel for petitioner has pointed out that those invoices relate to the subsequent periods. The petitioner has been making refund applications for successive periods in respect of accumulated input tax credit based on the supplies made by M/s.ABB Global Industries and Services Private Limited. The rejection of the claim on the ground that those invoices and agreements relate to the same period, i.e., 01.01.2021 to 31.01.2021, is not correct on facts. However, in the absence of an order dated 05.12.2023 passed by the Commissioner (Appeals), petitioner is not in a position to either challenge the same or to question the findings recorded by the Deputy Commissioner, GST, in the rejection of refund claim application also.

7. We are of the considered view that the petitioner has bypassed an alternative remedy of appeal by approaching this Court against the refund rejection order, dated 09.09.2024 for the period from September, 2022 to November, 2022.

8. The plea taken by the petitioner also appears to involve scrutiny and verification of invoices and agreements, which involved questions of facts that can be properly gone into by the Appellate Authority.

9. We are therefore of the view that the petitioner should avail an alternative remedy of appeal against the impugned order rejecting the refund application dated 09.07.2024. The Appellate Authority would consider the question of delay in preferring appeal taking into account that the petitioner had questioned the same before the Writ Court. The plea taken b