Saiher Supply Chain Consulting ... vs The Union Of India And Anr
2022 Latest Caselaw 308 Bom

Osk                                                       9-Wp-L-1275-2021.odt



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                  ORDINARY ORIGINAL CIVIL JURISDICTION

                   WRIT PETITION (L.) NO. 1275 OF 2021

Saiher Supply Chain Consulting Pvt. Ltd.          ]
A private limited company incorporated in the     ]
laws of India                                     ]
Having its place of business at                   ]
D-902, Times Square Building,                     ]
Marol, Andheri Kurla Road,                        ]
Andheri East, Mumbai - 400 059                    ]    ... Petitioner

      Versus

1. The Union Of India &                           ]
   Through the Secretary,                         ]
   Ministry of Law and Justice,                   ]
   4th Floor, A Wing, Rajendra Prasad Road,       ]
   Shastri Bhavan,                                ]
   New Delhi - 110 001                            ]

2. Assistant Commissioner of CGST                 ]
   and Central Excise Division-X,                 ]
   Mumbai-East Commissionerate,                   ]
   1st Floor, Lotus Info Centre,                  ]
   Parel East - 400 012                           ]    ... Respondents


                                  ******
Mr.Ishaan Patkar a/w. Ms.Nidhi Shah i/b. Ms.Jindagi Shah for Petitioner.
Mr.N.R. Bubna for Respondent No.1.
Mr.Swapnil Bangur a/w. Mr.L.P. Sawant for Respondent No.2.
                                  ******

                                     CORAM : R. D. DHANUKA &
                                             S. M. MODAK, JJ.

                                     DATE       : 10th JANUARY 2022.
                                     (Through Video Conference)

 Osk                                                           9-Wp-L-1275-2021.odt




ORAL JUDGMENT (PER : R. D. DHANUKA, J.) :-

1. Leave to amend is granted to amend the prayer Clause (c) and to

correct the date of third refund application mentioned as '3.9.2020' as

'30.9.2020'. Amendment be carried out within a period of two days from

today. Re-verification is dispensed with.

2. Rule.

3. Mr.Bubna, learned counsel for Respondent No.1 and Mr.Bangur,

learned counsel for Respondent No.2 waives service of notice. By consent of

learned counsel for the parties, Petition is heard finally.

4. By this Petition filed under Article 226 of the Constitution of

India, the Petitioner seeks declaration that, Rule 90(3) of the Central Goods

and Services Tax Rules, 2017 is ultra vires the Constitution of India and the

Central Goods and Services Tax Act, 2017 and consequently strike down the

same. The Petitioner also a seeks writ of certiorari for quashing and setting

aside the rejection Order dated 26 th November 2020 and seeks an Order and

direction to restore the third refund application dated 30 th September 2020 of

the Petitioner filed by the Respondent No.2 and to decide the same on merits.

Osk 9-Wp-L-1275-2021.odt

5. The Petitioner filed the first refund application for the period July

2018 to September 2018 on 21st August 2020 online on the GST portal. The

said application however was rejected by the Respondent No.2 on 5 th

September 2020 on the ground that there were certain deficiencies in the said

application.

6. The Petitioner thereafter filed second refund application on 8 th

September 2020. The Respondent No.2 rejected the said second refund

application by pointing out deficiency by Order dated 23rd September 2020.

7. The Petitioner thereafter filed third refund application on 30 th

September 2020. The Respondent No.2 however rejected the said third refund

application by Order dated 26th November 2020 on the ground that the said

application was time barred. The Petitioner filed this Writ Petition inter-alia

praying for restoration of the third refund application and for various other

reliefs.

8. Mr.Patkar, learned counsel for Petitioner invited our attention to

the impugned Order passed by the Respondent No.2 on 26 th November 2020

rejecting the third refund application filed by the Petitioner on the ground of

time barred refund application. Learned counsel invited our attention to the

Order passed by the Hon'ble Supreme Court on 23 rd March 2020 in Re:

Osk 9-Wp-L-1275-2021.odt

Cognizance for Extension of Limitation (Order dated 23 rd March 2020),

reported in 2020 SCC Online SC 343, in Suo Motu Writ Petition (Civil) No. 3

of 2020, and more particularly paragraph Nos.2 and 3 which read thus :-

"2. To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.

3. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this Order is a binding Order within the meaning of Article 141 on all Courts/Tribunals and authorities."

9. Learned counsel also invited our attention to the Order dated 23 rd

September 2021 in Re: Cognizance for Extension of Limitation (Order dated

23rd September 2021), reported in 2021 SCC Online SC 947, passed by the

Hon'ble Supreme Court in Misc. Application No. 665 of 2021 in Suo Motu

Writ Petition (Civil) No. 3 of 2020, more particularly paragraph No.8. He

submits that, the third refund application filed by the Petitioner on 30 th

September 2020 was filed between the said period i.e. 15 th March 2020 and

Osk 9-Wp-L-1275-2021.odt

2nd October 2021. He submits that in view of the extension granted by the

Hon'ble Supreme Court by exercising powers under Article 142 read with 141

declaring that the said Order was binding Order within the meaning of Article

141 on all Courts/Tribunals and Authorities, the Respondent No.2 could not

have rejected the third application on the ground of limitation.

10. Learned counsel for Petitioner also placed reliance on the

judgment of the Madras High Court delivered on 28 th September 2021 in the

case of M/s.GNC Infra LLP Vs. Assistant Commissioner (Circle), in

W.P.No.18165 & 18168 of 2021, more particularly paragraph Nos.6 to 8 and

would submit that, after adverting to the judgment of the Hon'ble Supreme

Court in Re: Cognizance for Extension of Limitation passed on 23 rd March

2020 the Madras High Court has extended the period of limitation in case of

refund application in similar circumstances.

11. Mr.Bangur, learned counsel for Respondent No.2 invited our

attention to the reasons recorded by the Respondent No.2 while rejecting the

two refund applications filed by the Petitioner and submits that, since those

two applications were full of deficiencies, were rightly rejected by the

Respondent No.2. He submits that, the third refund application was required

to be filed within the period of two years under Circular dated 18 th November

Osk 9-Wp-L-1275-2021.odt

2019 under Section 54(1) of the Central Goods and Services Tax Act, 2017.

He submits that the third refund application was admittedly filed after expiry

of two years.

12. It is not in dispute that the first and second refund applications

were rejected on the ground of certain deficiencies in those applications filed

by the Respondent No.2. The third refund application, which was required to

be filed within two years in accordance with the Circular No.20/16/04/18-

GST dated 18th November 2019, under Section 54(1) of the Central Goods

and Services Tax Act, 2017. The limitation period fell between 15 th March

2020 and 2nd October 2021, which period was excluded by the Hon'ble

Supreme Court in all such proceedings irrespective of the limitation prescribed

under the general law or Special Law whether condonable or not till further

Order/s to be passed by the Hon'ble Supreme Court in those proceedings.

13. The Hon'ble Supreme Court by Order dated 23 rd September 2021

in Misc. Application No. 665 of 2021 issued further directions that in

computing the period of limitation in any Suit, Appeal, Application and or

proceedings, the period from 15th March 2020 till 2nd October 2021 shall stand

excluded. Consequently the balance period of limitation remaining as on 15 th

March 2021, if any shall become available with effect from 3 rd October 2021.

Osk 9-Wp-L-1275-2021.odt

In view of the said Order dated 23rd March 2020 and the judgment dated 23rd

September 2021 passed by the Hon'ble Supreme Court, the period of

limitation falling between 15 th March 2020 and 2nd October 2021 stood

excluded. In our view also, the period of limitation prescribed in the said

Circular under Section 54(1) also stood excluded.

14. In our view, the Respondent No.2 is also bound by the said Order

dated 23rd March 2020 and the Order dated 23rd September 2021 and is

require to exclude the period of limitation falling during the said period. Since

the period of limitation for filing the third refund application fell between the

said period 15th March 2020 and 2nd October 2021, the said period stood

excluded. The third refund application filed by the Petitioner thus was within

the period of limitation prescribed under the said Circular dated 18 th

November 2019 read with Section 54(1) of the Central Goods and Services

Act, 2017. In our view, the impugned Order passed by the Respondent No.2 is

contrary to the Order passed by the Hon'ble Supreme Court and thus deserves

to be quashed and set-aside.

15. We accordingly pass the following Order :-

(i) The impugned Order dated 26th November 2020 is quashed and set-aside.

(ii) The third refund application dated 30 th September 2020

Osk 9-Wp-L-1275-2021.odt

annexed at Exh.H to the Petition filed by the Petitioner before the Respondent No.2 is restored to the file of Respondent No.2.

(iii) Respondent No.2 is directed to consider the said third refund application dated 30th September 2020 on its own merits and in accordance with law expeditiously.

(iv) Writ Petition is allowed in the aforesaid terms.

                                 (v)     Rule is made absolute accordingly.
                                 (vi)    No Order as to costs.

(vii) It is made clear that, we have not gone into the validity of the Circular and the Rule 90(3) of the Central Goods and Services Tax Rules, 2017 in this Order and the same can be considered in appropriate case.

(viii) Parties to act on the basis of an authenticated copy of this Order.

                              [S. M. MODAK, J.]                            [R. D. DHANUKA, J.]




           Digitally signed
           by OMKAR
OMKAR      SHIVAHAR
SHIVAHAR   KUMBHAKARN
KUMBHAKARN Date:
           2022.01.12
           11:29:12 +0530