Newsletter – Vol. 1, Issue 21 – 12.12.2021

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The SCN for Rejecting the Refund has reason as ‘other – error in adjusted total turnover’ only – the SCN lacks clarity and requisite material necessary, even the rejection order is non-speaking: Hon’ble Gujarat High Court 
In ArcelorMittal Nippon Steel India Ltd. v. Assistant Commissioner, R/SCA No. 11043 of 2020, the respondent has issued the SCN to reject the refund claim while simply mentioning the reason as “other” with column remark – “error in adjusted total turnover.” Hon’ble HC held that not only the SCN lacks the clarity and requisite material necessary to meet with the same, the order impugned is also in clear violation of the settled cannon of law. Lack of reasons in the SCN has not enabled the parties to make an effective representation and file the reply nor would the grant of personal hearing for contesting such SCN would sub-serve the purpose. The order of rejection also is a non-speaking order and the same had been passed without bearing in mind the requirements of giving any reasons for rejection. The consideration of refund claims was remanded back. 

The petitioner may make a specific request to the relevant Commissioner under Rule 120A to extend the time to file a revised form GST TRAN-1: Hon’ble Meghalaya High Court
In M/s Pioneer Carbide Pvt. Ltd. v. Union of India and Ors., WP (C) No. 404/2021, Hon’ble HC allowed the Writ Petition by permitting the petitioner to make a specific request to the relevant Commissioner under Rule 120A of the CGST Rules to extend the time to file a revised declaration upon correcting whatever mistake may be perceived to have been committed in the course of the initial filing. If such request is made by the petitioner to the relevant Commissioner within a fortnight from the date, the Commissioner will consider the matter in appropriate perspective and without reference to the order impugned. In the unlikely event that the Commissioner declines the request, due reasons in support of such decision should be communicated to the petitioner within a period of six weeks from the receipt of the written request in terms of this order.

The Appellate Authority to hear and decide the appeal within one-year time limit (S. 107(13)) – HC directed to dispose of the Appeal within two weeks: Hon’ble Gujarat High Court
In M/s Indian Institute of Management v. Deputy Commissioner (Appeals), R/SCA No. 17253 of 2021, the grievance on the part of the petitioner is that the respondents failed to comply with the statutory time limit stipulated under Section 107(13) of the GST Act and even the date for fixing the hearing of the appeal has not been considered despite several inquiries where no response is compelled to approach this Court. Hon’ble HC held that the Appeal before the First Appellate Authority be listed within two weeks and be disposed of in accordance with the law. 

The dispute regarding refund of IGST subsequently found/held – set aside impugned order stating it is only ‘subsequently held’ – remanded back without entering into merits: Hon’ble Chhattisgarh High Court
In M/s Radhemani and Sons v. Additional Commissioner (Appeals) CGST and CE and Ors., W.P.(T) No. 213 of 2021, First Appellate Authority observed that a refund in terms of Section 77 of CGST Act, 2017 and Section 19 of the IGST Act, 2017 would arise only when a supply considered as Intra-State supply is so held by any authority as Inter-State supply or vice versa. It, thus, held that the refund under these provisions would not arise suo motu (subsequently found) and rejected the appeal while affirming the order of the Adjudicating Authority. Hon’ble HC set aside the FAA’s order and remitted the matter back to the concerned appellate authority with a direction to decide the same afresh in the light of the circular issued on 25.09.2021 in accordance with the law. No observation on merits.  

Section 83 of the Goa GST Act would come into operation only if any proceedings are pending under Sections 62, 63 or 64 or Section 67 or section 73 or section 74: Hon’ble Bombay High Court at Goa
In M/s XEC Metals and M/s S.M. Constructions v. Commissioner of Commercial Taxes, Goa, State of Goa, W.P. No. 2177 of 2021, Hon’ble HC held that Section 83 of the Goa GST Act would come into operation only if any proceedings are pending under Sections 62, 63 or 64 or Section 67 or section 73 or section 74. Admittedly, no proceedings are pending or initiated against the petitioners under any of the provisions. Mere appointment of an appropriate officer for determining the tax liability will certainly not be a ground to initiate any action, like the present one i.e. of provisionally freezing the bank accounts of the petitioners under the Goa GST Act. The impugned order cannot be sustained – petition allowed.

The period of limitation for filing Appeal u/s. 107(1) would commence from the date of service of the scanned copy of the order and not from the date when the order is uploaded on the GSTN portal: Hon’ble Bombay High Court
In M/s Meritas Hotels Pvt. Ltd. v. The State of Maharashtra and Ors., W.P. No. 7793 of 2021, the assessment order u/s. 62 was passed on 20.04.2019, on the same day the scanned copy of the order was communicated to the General Manager of the company. It is after the initiation of recovery proceedings certified copy came to be made on 05.11.2019. The Appeal u/s. 107(1) was attempted to be filed in the physical form on 20.11.2019 which respondent no. 5 refused to accept or even acknowledge the receipt thereof. The impugned assessment order was uploaded on the GSTN portal only on 08.01.2020 whereupon the petitioner tried to file an online appeal on the GSTN portal on 10.01.2020. The status on the portal showed that there is a delay in filing the appeal. Hon’ble HC held that in the present case, having regard to the express provisions of sub-Section (1) and (4) of Section 107 of the said Act, we have no manner of doubt, that for the purpose of limitation, the date of communication of the impugned assessment order is to be regarded as 20.04.2019 viz the date on which the order was sent by email to the petitioner. In the facts of this case, having regard to the express and unambiguous language of S. 107(1), we do not find any force in the contention of learned counsel for the petitioner, that the date of uploading of the impugned assessment order on the GSTN portal has to be regarded as the date of communication for the purpose of calculating limitation.

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