ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

Heard learned advocate Mr. Saurabh Rachchh for the petitioners and learned advocate Mr. Nikunt Raval for the respondents.

2. The prayers made in the captioned petition are the following,

“(a) to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ order or direction, calling for the records of the Petitioner’s case and after going into the legality and validity thereof to quash and set aside the Impugned Order dated 30.09.2021 passed by the Respondent No. 2;

(b) to issue a writ of mandamus or any other appropriate writ, order or direction ordering and directing the Respondent No. 2 by themselves, their subordinate servants and agents (i) to withdraw and/or cancel the Impugned Order dated 30.09.2021 passed by the Respondent No. 2 (ii) to refrain from taking any further proceedings or steps in furtherance of the Impugned Orders dated 30.09.2021 passed by the Respondent No. 2;”

3. The ground raised by the authorities in not sanctioning the refund was that the refund applications were belatedly filed under section 54 of the Central Goods and Services Tax Act, 2017 (For short “the CGST Act,2017”).

4. Respondent no.2 while allowing the appeal of CGST department by order dated 30.09.2021 and setting aside the order dated 26.10.2020 passed by the Deputy Commissioner sanctioning the refund held that the refund claim of the petitioner of Rs. 1,02,04,266/- in respect of Input Tax Credit accumulated due to inverted tax structure under section 54(3)(ii) of the CGST Act,2017 for the tax period from 01.04.2018 to 31.08.2018 filed on 23.10.2020 was time barred i.e. filed beyond two years from the relevant date.

5. It is the case of the petitioner that respondent no.2 has taken relevant date as due date of filing return under section 39 of the CGST Act, 2017 i.e. monthly return to be filed on or before 20th of the next month which had substituted the relevant date from the end of the financial year with effect from 01.02.2019 and considering it as retrospective. The refund application filed for the period from 01.04.2018 to 31.08.2018 on 23.10.2020 was therefore, not time barred from the relevant date as stood at the relevant time i.e. the end of the financial year.

6. It is the submission of the petitioner that the Supreme Court by Suo Moto order dated 23.03.2020 and subsequent orders due to Corona Pandemic excluded period from 15.03.2020 to 28.02.2022 plus 90 days from the limitation period prescribed under general law as well as special law. The Central Government also vide Notification dated 5.07.2022 amended Notification dated 3.04.2022 so as to exclude the period from 1st day March, 2020 to 28.02.2022 for computation of period of limitation for filing of refund application under section 54 or section 55 of the CGST Act, 2017 with effect from 1.03.2020.

7. When the petitions come up for consideration, learned advocates for the parties are ad idem that in view of the Notification dated 5.7.2022 bearing No. 13/2022 issued by the Central Government in exercise of powers under section 168A of the Central Goods and Services Tax Act, 2017, which excludes the time limit specified for computing of period of limitation in filling the refund application, the claim of the petitioners for refund was filed within such excluded period.

8. The Notification reads as under, in particular clause (ii) of the Notification applies to the case of the petitioners,

“NOTIFICATION

New Delhi, the 5th July, 2022

No. 13/2022-Central Tax

G.S.R. 516(E)-In exercise of the powers conferred by section 168A of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereinafter referred to as the said Act) read with section 20 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017) and section 21 of the Union Territory Goods and Services Tax Act, 2017 ( 14 of 2017) and in partial modification of the notifications of the Government of India in the Ministry of Finance (Department of Revenue), No. 35/2020-Central Tax, dated the 3rd April, 2020, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 235(E), dated the 3rd April, 2020 and No. 14/2021-Central Tax, dated the 1^st May, 2021, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 310(E), dated the 1^st May, 2021, the Government, on the recommendations of the Council, hereby,-

(i) extends the time limit specified under subsection (10) of section 73 for issuance of order under sub-section (9) of section 73 of the said Act, for recovery of tax not paid or short paid or of input tax credit wrongly availed or utilized, in respect of a tax period for the financial year 2017-18, up to the 30th day of September, 2023;

(ii) excludes the period from the 1st day of March, 2020 to the 28th day of February, 2022 for computation of period of limitation under subsection (10) of section 73 of the said Act for issuance of order under sub-section (9) of section 73 of the said Act, for recovery erroneous refund;

(iii) excludes the period from the 1st day of March, 2020 to the 28th day of February, 2022 for computation of period of limitation for filing refund application under section 54 or section 55 of the said Act.

2. This notification shall be deemed to have come into force with effect from the 1st day of March, 2020.

[F. No. CBIC-20001/2/2022-GST]

Rajeev Ranjan,

Under Secretary”

9. The above aspect could not be disputed by learned advocate for the respondents. He additionally produced copy of E-mail communication dated 31.8.2022 from the competent authority which confirmed the application of the aforesaid Notification dated 5.7.2021 in the facts of the case of the petitioner to bring the refund claim of the petitioners within time.

10. In light of the above, the competent authority of the respondents is directed to process in accordance with law the claim of refund of the petitioners treating it within time and grant refund with statutory interest, if the petitioners are found eligible. The exercise shall be completed within a period of 12 weeks from the date of receipt of copy of this order.

11. The petition stands disposed of in the aforesaid terms.