The Jammu and Kashmir High Court quashed the order rejecting the refund and remitted the matter back to the Authority for fresh consideration.
The petitioner, Navneet R. Jhanwar having become entitled to refund of excess tax paid in terms of Section 54 of the Act, submitted a refund claim before the respondent authority in FORM-GST-RFD-06.
The Respondent instead of directing the refund issued a show-cause notice calling upon the petitioner to show cause as to why his refund claim to the extent of the amount claimed should not be rejected or the amount erroneously refunded should not be recovered for the reason that the claim for refund is belated having been filed after the expiry of two years from the relevant date, as per explanation in Section 54(1) of the Act and that in the instant case the period had expired in April 2020.
The petitioner replied to the show cause notice and explained the delay. He relied upon notification dated April 3, 2020, and Notification dated June 27, 2020 issued by respondent whereby due to outbreak of coronavirus pandemic, time limit/due date for various compliances has been extended up to August 31, 2020. The explanation on delay by the petitioner in light of the aforesaid notifications of respondent No.3 was accepted and accordingly, the application of the petitioner for refund was processed by respondent No.1.
He, however, without serving further show cause notice upon the petitioner, determined the claim for refund and in terms of the order impugned dated December 2, 2020 rejected the same being not tenable in law. It is this order of respondent dated December 2, 2020, which is assailed in this petition.
The petitioner has invited our attention to Section 54 of the Act and Rule 92 of the Central Goods and Service Tax Rules, 2017, wherein it is specifically provided that no order rejecting the claim of refund shall be passed unless the person claiming refund is given an opportunity of being heard.
Mr. D.C.Raina, learned Advocate General appearing for the respondents takes a preliminary objection with regard to the maintainability of the petition. He contends that in view of the availability of alternative remedy against the impugned order under Section 107 by way of appeal before the Appellate Authority, this Court ought not to entertain this petition.
The division bench of Justices Sanjay Dhar and Sanjeev Kumar allowed the petition and quashed the impugned order and remand the case back to the respondent for passing the order afresh after putting the petitioner to proper show cause notice and after affording him a reasonable opportunity of being heard.
Advocates Prateek Gattani and Rahul Sharma appeared for the petitioner.
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