GST Regime At Nascent Stage; Bombay High Court Quashes Order Rejecting IGST Refund

The Bombay High Court has quashed the order rejecting Integrated Goods and Service Tax (IGST) on the grounds that the order was passed without any reason and without application of mind.

The bench of Justice K.R. Shriram and Justice Jitendra Jain have observed that the CGST Commissioner does not have the power to condone the delay, but the writ court does.

The bench further observed, “Our judicial conscience does not permit us to reject this cause shown as bogus, particularly in view of the fact that the petitioner was an individual and the GST regime was at a nascent stage. Moreover, in both orders impugned in the petitions, there is no whisper about the merits of the application.”

The petitioner/assessee is an individual carrying on business in the name and style of M/s. Air Miracle. The petitioner undertakes heating, ventilation, air conditioning, and clearnroom projects for hospitals, pharmaceutical companies, IVF laboratories, biotech laboratories, etc. The petitioner had supplied goods to one export-oriented unit, viz., Apothecon Pharmaceuticals Pvt. Ltd., and on the supply, the petitioner had charged IGST at the rate of 18% p.a., and the and the petitioner has discharged the IGST liability as well.

The assessee was entitled to a refund of the IGST paid and accordingly filed an application for refund, claiming a sum of Rs. 17,52,468/-. The application was rejected by an order dated September 21, 2019 passed by the Assistant Commissioner. The rejection order has been passed without giving any reasons and also without application of mind.

The assessee preferred an appeal against the order passed by the Assistant Commissioner of CGST and Central Excise before the Commissioner of CGST and Central Excise, who rejected the appeal on the grounds that the appeal ought to have been filed within three months with a provision to extend by one month upon sufficient cause being shown, but the appeal was filed about 29 days late and hence barred by limitation.

The Commissioner noted that he did not have the power to extend the time limit after the extendable one-month period was over.

The petitioner has challenged an order passed by the Assistant Commissioner of CGST and Central Excise and an order passed by the Commissioner of CGST and Central Excise.

The department contended that if the petitioner had not approached the Court within the time prescribed for filing the appeal, the Court could not exercise its jurisdiction under Article 226 of the Constitution of India.

The court rejected the department's argument that the writ petition is not maintainable as it has been filed beyond the time provided for an appeal and held that writ jurisdiction is invokable in light of Article 300A.

The court, while remanding the matter for reconsideration, directed the department to reconsider the application on its merits.

Counsel For Petitioner: Bharat Raichandani

Counsel For Respondent: Jitendra B. Mishra

Citation: 2024 LiveLaw (Bom) 319

Case Title: Sanjeev Suresh Desai Versus UOI

Case No.: Writ Petition No.2876 Of 2021 With Writ Petition No.2891 Of 2021

Click Here To Read The Order