Part-47-One Pager Snapshot to the Latest Cases

-Extension of Time Limit for filing of refund application
-Seller to compensate Buyer for ITC not reflecting in GSTR-2A
-Order of Provisional Attachment cannot be in force for a period of more than one year
-Condition for AdditIonal payment for stay of demand cannot be imposed when Appeal has already been filed with 10% Pre-Deposit

S.No

Section

Case Subject

Case

Held

1

Section
54

Extension of Time
Limit for filing of
refund application

Geeta Enterprises
v. Union of India
[2023] 152
taxmann.com 27
(Delhi)

The order-in-original dated 11.05.2021 rejected the petitioner's claim for refund of ITC for the month of April, 2018 as time barred. The
order-in-appeal rejected petitioner's appeal. The petitioner contended that vide notification dated 05.07.2022 (Notification No.13/2022 -
Central Tax) period of limitation for filing an application for refund under Sections 54 and 55 of the CGST Act has been relaxed.
The High Court set aside the impugned orders and the petitioner's application were restored for deciding the same on merits.

2

Section
16

Recipient cannot be
held liable for
incorrect filing of
GSTR-1 by the
supplier and
supplier directed to
refund the amount of
demand recipient
had to pay for
incorrect filing of
GSTR-1 by supplier
as the said amount
not reflected in
GSTR-2A of
Recipient

Agrawal &
Brothers v. Union
of India
[2023] 152
taxmann.com 111
(Madhya Pradesh)

The instant writ petition was filed by M/s Agarwal and Brothers against the Railways for incorrect reporting of Transaction in GSTR-1 and
due to which they had to pay a demand of Rs 13,38,544/- to GST Department as the said amount of ITC was not reflected in GSTR-2A.
The petitioner purchased for a total consideration of Rs.51,97,142/- including the GST of Rs.9,35,486/-. The petitioner thereafter came to
know that Railways had committed default in reporting the entries by not reporting the auction sales invoice duly paid by the petitioner in
GSTR-1 due to which the auction sale invoice was not reflected in the petitioner's GSTR-2A. GST Department issued a demand notice
dated 05.02.2020 to the petitioner demanding input tax wrongly availed with interest. In order to avoid the cancellation of GSTIN due to
non-payment of the GST charges, the petitioner agreed to repay the requisite GST charges on aforesaid entries for the year 2017-18 under
protest. Final order was passed by the Officer confirming demand of ITC amounting to Rs.9,34,096/- together with interest of Rs.4,04,451/-
The High Court stated that there is no recovery of GST against the petitioner since the amount has already been deposited. However, it is
a settled law that no one cannot be made to suffer for the fault of another. Since this deposit of GST was not reflected in GSTR-2A of the
petitioner due to fault of Railways, therefore, petitioner had to pay the GST to the department with interest again in order to avoid the
cancellation of GSTIN, therefore, he is entitled to seek the return of Rs.13,38,544/- from Railways.
The Writ Petition was allowed and Railways was directed to return the amount of Rs.13,38,544/- to the petitioner and Railways was stated
to be at liberty to submit a claim before the GST department as the same has been paid by the petitioner and if such claim is submitted,
the competent authority GST Department shall decide the same in accordance with the law. The Writ Petition was allowed with a cost of
Rs. 10,000/- in favour of the petitioner payable by Railways

3

Section
83

Order of Provisional
Attachment cannot
be in force for a
period of more than
one year

Sri Om Traders v.
Principal
Additional Director
General of GST
Intelligence Officer
DGCI [2023] 152
taxmann.com 115
(Karnataka)

The High Court stated that in the present case, the period of one year from the passing of the provisional orders of attachment has expired
as evident from the details furnished and the provisional orders of attachment automatically by operation of law have been ceased to be in
operation. Accordingly, the impugned orders of attachment were declared to be no longer in operation from the expiry of the period of one
year as stipulated under Section 83(2) of the Act.

4

Section
107

Additional condition
for payment for stay
of demand cannot
be imposed when
Appeal has already
been filed with 10%
Pre-Deposit

Liakhat Ali Mallick
v. State of West
Bengal [2023] 152
taxmann.com 114
(Calcutta)

The appellant had earlier challenged notice dated 13th February, 2023 on the ground that the appellant has paid the entire tax as demanded
and has also preferred an appeal before the appellate authority and before the expiry of the period for filing the appeal, the garnishee notice
was issued. The learned Single Bench thereafter granted stay of the garnishee notice but imposed a condition that the appellant had to
deposit 20% of the interest liability. The decision was challenged.
The High Court reversing the decision of Single Bench held that considering that the statutory requirement mandates payment of only 10%
of the disputed tax, therefore a condition need not be imposed by directing the appellant/petitioner to pay 20% of the interest

Part-44-One Pager Snapshot to the Latest Cases

-Condonation of Limitation period in case of rejection of appeal filed against cancellation of registration
-Calculation of Time limit for filing of Appeal as four months are not always 120 days
-Alternative Remedy
-Grant of Bail

S.No

Section

Case Subject

Case

Held

Cases Referred

1

Section
107

Condonation
of Limitation
period in
case of
rejection of
appeal filed
against
cancellation
of
registration

Gautam Kar v.
Union of India
[2023] 151
taxmann.com 281
(Gauhati)

The petitioner stated that Order of cancellation of GST registration was passed without any notice to the petitioner. An appeal
filed before the Appellate Authority was also dismissed on the ground of limitation.
The High Court observed that purpose of limitation being prescribed in a statute is two fold, namely, to ensure compliance of
the statutory provisions by the persons on whom the provisions of the statute are applicable and further to ensure that no third
party rights which may have been created in the meantime are permitted to be non suited/unsettled. It would be in the interest
of the revenue to permit the revocation of a cancellation of GST registration of an assessee like the petitioner so that it felicitates
collection of revenue as mandated under the GST Regime. It was further stated that a writ Court is empowered to condone the
delay of any statutory or quasi judicial authority. Accordingly, the Court stated that appeal before the Appellate Authority be reheard on merits by passing appropriate orders regarding the revocation of cancellation of GST

Commissioner
of Income Tax12 v. Pheroza
Framroze and
Company -
(2017) 11 SCC
730

2

Section
107

Calculation
of Time limit
for filing of
Appeal as
four months
are not
always 120
days

Shri Ram Ply
Product v.
Additional
Commissioner
Grade 2 Appeal
State Tax [2023]
151 taxmann.com
282 (Allahabad)

The appeal instituted by the petitioner was dismissed on the ground that it was beyond maximum period, as prescribed under
the statute i.e. four months. The appellate authority computed four months as each month would be of 30 days.
The High Court stated that provisions of Section 107 of the Act, 2017 reflects that it is not 120 days, but it is four months. The
four months may be of 121 days or 122 days, as the case may be. In the present case, in four months, around 121 days come,
and the appeal was filed on 121st day. The appellate authority should have entered into the merit of the application whether it
disclosed sufficient cause for not filing the appeal within the period of three months instead of entering into merit of the
application to find out whether the appellant, petitioner herein had sufficient cause which preventing him from presenting the
appeal within a period of three months, the appeal has been summarily dismissed only on the ground that it was beyond 120
days, and not within 120 days.

-

3

Section
107

Alternative
Remedy

T.V.H.Express v.
State Tax Officer
[2023] 151
taxmann.com 283
(Madras)

The high Court observed that, as against the impugned order, there was an appeal remedy available before the appropriate
authority. It was clear from the records that the petitioner had still not filed any appeal as against the impugned order. Therefore,
High Court, without going into the merits and factual aspects of the matter, directed the petitioner to file appeal against the
impugned order, dated 17.03.2022.

-

4

Section 69
and
Section
132

Grant of Bail

Mohd. Rashid
Siddiqui v. State of
U.P. [2023] 151
taxmann.com 284
(Allahabad)

The applicant for the bail was a young lawyer associated with the informant of the present case, who was also a practising
lawyer, sent the eight firms to the applicant for providing legal aid and G.S.T. Thereafter, on his advice, services of one Sanjay
Yadav was taken, who misused the user I.D. and password of the applicant and raised fabricated input tax credit. Learned
counsel for the applicant further submitted that detail investigation was conducted by the Investigating Officer, but the only
evidence found was of payment of Rs.1,12,000/- in the account of wife of the applicant by co-accused Sanjay Yadav.
The High Court stated that considering the rival submissions of learned counsel for applicant, learned A.A.G, learned counsel
for the complainant and going through the material available on record, contents of F.I.R., other relevant documents, gravity of
offence as well as facts and circumstances of the case, it was evident that during the course of investigation Rs.1.12 lakh was
found in the account of wife of the applicant by the main accused, Sanjay Yadav. It was also evident that said Sanjay Yadav,
had already been enlarged on bail. In such circumstances, applicant was entitled to be released on bail.

-