M/S Vodafone Mobile Services ... vs Union Of India
2023 Latest Caselaw 5854 Guj

                                                                                 NEUTRAL CITATION




      C/SCA/1345/2021                            JUDGMENT DATED: 10/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 1345 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                   M/S VODAFONE MOBILE SERVICES LIMITED
                                  Versus
                              UNION OF INDIA
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Appearance:
MR BHARAT RAICHANDANI, ADVOCATE assisted by MR ANSHUL JAIN &
MR ADITYA R PARIKH(8769) for the Petitioner(s) No. 1
MR RAJ TANNA, AGP for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 4
PRIYANK P LODHA(7852) for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
           and
           HONOURABLE MR. JUSTICE DEVAN M. DESAI
                         Date : 10/08/2023
                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. Draft amendment is granted. It is to be carried out.

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2. Rule returnable forthwith. Mr. Priyank Lodha, learned

Senior Standing Counsel waives service of notice of Rule

for and on behalf of the respondent No.1, while Mr.Raj

Tanna, learned AGP waives service of notice of Rule for and

on behalf of the respondent Nos.2 to 4.

3. With consent of the learned advocates for the respective

parties, the matter is taken up for final hearing today as

the issue is now settled by several decisions of the

Coordinate Benches of several High Courts.

4. Heard Mr. Bharat Raichandani, learned counsel assisted by

Mr. Aditya Parikh, learned advocate for the petitioner, Mr.

Priyank Lodha, learned Senior Standing Counsel for and on

behalf of the respondent No.1 and Mr. Raj Tanna, learned

Assistant Government Pleader for and on behalf of the

respondent Nos.2 to 4.

5. Challenge in this petition is to the legality and validity of

the order No.13990 dated 27.2.2020 passed by the

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respondent authorities.

6. The facts in brief would indicate that the petitioner who

was engaged in providing telecommunication services

across India was merged with the Idea Cellular Limited vide

order dated 30.8.2018 passed by the National Company

Law Tribunal. With the introduction of the Goods and

Services Tax, the petitioner migrated to GST regime and

was registered under the provisions of the CGST / GGST

Act, 2017. On having so migrated with effect from August,

2017, taxes were paid in respective States wherever

liability was supposed to be discharged and compliances

including filing of GSTR-3B & GSTR-1 were streamlined.

There were instances where, excess payment of tax was

made in the State of Gujarat. The petitioner applied for

refund of excess tax after having made good the short

payment of tax through the annual returns. Applications for

refund were made.

7. By the impugned order, as is evident from the text of the

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order itself the order rejecting the claim for refund under

Section 54(5) of the CGST Act, 2017 is without any reasons.

8. Mr. Bharat Raichandani, learned counsel for the petitioner

would rely on orders passed by the High Court of Madhya

Pradesh, the High Court of Calcutta and the High Court of

Telangana in the case of the petitioner itself. Reading the

orders passed by several High Courts, it is clear that the

Court shall quash the orders under challenge and observed

that if the petitioner makes a fresh application for refund of

excess tax paid by the petitioner, the same shall be dealt

with, in accordance with law, afresh.

9. Mr. Raj Tanna, learned Assistant Government Pleader for

the respondent - State would contend that rather than

entertaining the present petition, the petitioner ought to be

relegated to an alternative remedy of filing an appeal

under Section 107 of the CGST Act.

10. Considering the various orders passed by this Court in the

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case of the petitioner itself, the petitioner is directed to

make a fresh application for refund in terms of Circular

No.125/44/2019-GST dated 18.11.2019 issued by the

Government of India, Ministry of Finance, Department of

Revenue, Central Board of Indirect Taxes and Customs,

GST Policy Wing, within a period of three weeks from

today. On such application being made, the authorities

shall dispose of the same on merits in accordance with law

as early as possible, preferably within a period of four

weeks thereafter.

11. In view of above, the impugned order dated 27.2.2020 is

hereby quashed and set aside. The petition stands allowed,

accordingly. Rule is made absolute to the aforesaid extent.

Direct Service is permitted. No order as to costs.

(BIREN VAISHNAV, J)

(D. M. DESAI,J) VATSAL