Bombay High Court
M/S. Babasaheb Kedar Shetkari Sahakari ... vs The State Of Maharashtra, Thr. ... on 25 September, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.5600 OF 2021
M/s Babasaheb Keda Shetkari Sahakari Soot Girni Limited Vs. The State of
Maharashtra, through its Principal Secretary Finance and others
Office Notes, Office Memoranda of Court's or Judge's orders
Coram, Appearances, Court's
orders or directions and Registrar's
orders
Mr. A.J. Gohokar, Advocate for petitioner
Mr. M.K. Pathan, AGP for Respondent Nos.1 to 5
CORAM: AVINASH G. GHAROTE &
URMILA JOSHI-PHALKE, JJ.
DATED : 25th SEPTEMBER, 2023 Heard Mr. Gohokar, learned counsel for the petitioner and Mr. Pathan, learned Assistant Government Pleader for the respondent / State. None for the respondent No.6 though served as per affidavit of service upon it.
2. The petition questions the refusal on the part of the respondents to refund the excess input tax under the GST Act, claimed to have been paid by the petitioner for the months of December, 2017 to March, 2018. The applications have been rejected on two grounds -
(i) That, there was a delay in filing the application for refund on the portal for the month of December, 2017, which was not being accepted on 2 18-wp-5600-2021.odt account of the amendment made to Section 54(1) to the GST Act in 2019 and
(ii) That, the application for subsequent months of January, February, March, 2018, were not accepted as the application for previous month was not available.
3. Mr. Gohokar, learned counsel for the petitioner contends, that in view of Section 97-A of the GST Act, a manual filing and processing of refund is also permissible and for that purpose he relies upon the judgment in the case of Laxmi Organic Industries Ltd.
Vs. Union of India in Writ Petition No.7861 of 2021 decided on 30/11/2021 by the learned Principal Bench of this Court. He further submits, that since there is limitation of two years for filing the refund application in terms of Section 54(1) of the GST Act of 2017, the subsequent amendment which changes the definition of the 'relevant date' would be applicable prospectively and not prior to 01/02/2019, when the amendment is said to have come into effect.
4. Mr Pathan, learned Assistant Government Pleader contends, that the period of two years has to be calculated in terms of the amended provision, which has come into effect from 2019 and therefore, since the application for refund has not been filed within due date of furnishing return as per the amended provision 3 18-wp-5600-2021.odt Sections 54(1) of the said Act, the same has rightly been not accepted.
5. Insofar as the question of delay is concerned, the period between 15/03/2020 to 28/02/2022 has been excluded by the Hon'ble Apex Court in Miscellaneous Application No. 21/2022 in SMWC No.3/2020 (In Reference Cognizance For Extension of Limitation Vs XXXX ) and considering the deletion of this period, the application which has been filed on 13/5/2020 for the month of December, 2017, would be within time.
6. Insofar as the plea regarding applicability of the amendment to Section 54(1) of the GST Act is concerned, it would be apparent that the amendment would be prospective in nature, unless so specified, which is not the case and therefore, the amended Section 54(1) would be applicable to the application for refund filed post 01/02/2019 to claim for refund in respect of returns filed consequent to that date. It would therefore, be apparent that the application for refund of the input tax to be filed by the petitioner would be covered by the earlier definition of 'relevant date' which defined the same as end of financial year and not the amended definition of 'relevant date' which defines it as due date for furnishing return.
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7. In that view of the matter, in our considered opinion, the application filed by the petitioner for refund of the input tax for the month of December, 2017 ought to have been entertained for the above period by the respondents and appropriate orders could have been passed.
8. Insofar as the applications for refund for the month from January to March, 2018 are concerned, in view of the language of Rule 97-A of the GST Rules, the petitioner would be entitled to file an application manually as the applications sought to be filed through the portal were not accepted as is indicated from the documents at page Nos. 26 to 34.
9. The petition is allowed by directing the respondents to accept and entertain the applications for refund of input tax and process them according to the rules as applicable. No costs.
(URMILA JOSHI-PHALKE,J.) (AVINASH G. GHAROTE, J.) MP Deshpande Signed by: Mr. M.P. Deshpande Designation: PA To Honourable Judge Date: 26/09/2023 14:33:53