M/S. Abb India Limited vs Joint Commissioner Of Commercial Taxes

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 14TH DAY OF NOVEMBER, 2025

BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 17442 OF 2025 (T-RES) BETWEEN: M/S. ABB INDIA LIMITED, HAVING OFFICE AT DISHA 3RD FLOOR, PLOT NO. 04A, 05 AND 06, 2ND PHASE, PEENYA INDUSTRIAL AREA IV, PEENYA, BENGALURU URBAN BENGALURU KARNATAKA - 560 058 GSTIN: 29AAACA3834B1Z4 COMPANY REGISTERED UNDER COMPANIES ACT, 2013, REPRESENTED BY ITS AUTHORISED SIGNATORY, SRI PRANESH T. N. DESIGNATED AS MANAGER TAXATION, PLOT NO. 5 AND 6, 2ND PHASE, PEENYA INDUSTRIAL AREA, BENGALURU - 560 058. ...PETITIONER (BY SRI. G. SHIVADASS, SENIOR COUNSLE FOR SRI. PRASHANTH S., SRI. RISHAB J. AND SRI. SUMONTO C., ADVOCATES) Digitally signed by AND: MADHURI S 1. JOINT COMMISSIONER OF COMMERCIAL TAXES Location: (APPEALS-6), ROOM NO. 223, 2ND FLOOR, High Court of BMTC/TTMC BUS STAND 'B' BLOCK, Karnataka SHANTHINAGAR, BENGALURU, KARNATAKA - 560 027.

2. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES LOCAL GOODS AND SERVICE TAX OFFICE 75, OFFICE OF THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES LGSTO -075, PLOT NO. 2, 1ST FLOOR, KIADB BUILDING, PEENYA INDUSTRIAL AREA, 14TH CROSS, 2ND STAGE, BENGALURU, KARNATAKA - 560 058. ...RESPONDENTS (BY SMT. JYOTI M. MARADI, HCGP) -2- NC: 2025:KHC:47533 WP No. 17442 of 2025

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE ORDER(S), DIRECTIONS, WRIT(S) IN THE NATURE OF CERTIORARI QUASHING THE ORDER NO. GST/AP-10/2022-23 DATED 21.10.2023 FOR THE PERIOD OF FEBRUARY 2020 ANNEXED AT ANNEXURE-A AS BEING PASSED WITHOUT ANY LEGAL BASIS AND ETC.,

THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL ORDER

In this petition, petitioner seeks for the following reliefs:-

a. To issue order(s), directions, writ(s) in the nature of Certiorari quashing the Order No. GST/AP-10/2022- 23 dated 21.10.2023 for the period of February 2020 annexed at Annexure-A as being passed without any legal basis;

b. To issue order(s), directions, writ(s) in the nature of Certiorari quashing the Order No.:JCCT/DGSTO- 06/RFD/186/LGSTO-075/2021-22 dated 28.01.2022 along with Endorsement dated 14.02.2022 for the period of February 2020 annexed at Annexure-B as being passed without any legal basis;

c. To issue order(s), directions, writ(s) in the nature of Mandamus holding that the Petitioner is eligible to claim refund in terms of Section 54 of the CGST Act and Rule 89 of the CGST Rules;

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claimed refund in terms of Section 54 while submitting its refund application for excess payment of tax in Form GST RFD-01;

e. To issue order(s), directions, writ(s) or any other relief as this Hon'ble Court deems it fit and proper in the facts and circumstance of the case in the interest of justice."

2. Heard learned Senior counsel on behalf of the learned

counsel for the petitioner and learned HCGP for the respondents

and perused the material on record.

3. In addition to reiterating the various contentions urged

in the memorandum of petition and referring to the material on

record, learned Senior counsel for the petitioner invited my

attention to the impugned refund rejection order at Annexure-B

dated 28.01.2022 along with the screenshot of the status of refund

application, which was rejected and accompanying by the

endorsement dated 14.02.2022 contending reasons and details as

to why refund claim of the petitioner was being rejected by the

respondents. Aggrieved by the aforesaid refund rejection order

comprising of the order, screenshot and the endorsement, the

petitioner filed an appeal before the Appellate Authority, which -4- NC: 2025:KHC:47533 WP No. 17442 of 2025

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proceeded to dismiss the appeal as not maintainable since the

same was filed against the endorsement and as such, the

petitioner is before this Court by way of the present petition.

4. It is submitted that both respondent Nos.1 and 2 i.e.,

the Original Authority and the Appellate Authority, respectively,

committed an error in rejecting the refund applications of the

petitioner, without taking into account the relevant provisions of

KGST Act as well as the following judgments:

(i) Nam Estates Pvt. Ltd. Vs. Joint Commissioner of Commercial Taxes (Appeals-I), Bengaluru - 2024 (87) G.S.T.L. 398 (Kar.).

(ii) Joint Commissioner of Commercial Taxes (Appeals-1) Vs. Nam Estates Pvt. Ltd. - 2025 (96) G.S.T.L. 579 (Kar).

(iii) Commr. Of C.Ex. (Appeals), Bangalore Vs. KVR Construction - 2012 (26) S.T.R. 195 (Kar.).

(iv) Parijat Construction Vs. Commissioner of Central Excise, Nashik reported at 2018 (359) E.L.T. 113(Bom)

(v) 3E Infortech vs. CESTAT Chennai - 2018 (18) G.S.T.L. 410 (Mad.).

(vi) Siemens Ltd. Vs. Joint Commissioner of State Tax -

(2024) 22 Centax 513 (Bom.).

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It is therefore submitted that the impugned order deserves to

be set aside and the refund application filed by the petitioner,

deserves to be allowed.

5. Per contra, learned HCGP would reiterate the various

contentions urged in the Statement of Objections as well as in the

written submissions and submits that there is no merit in the

petition and that the same is liable to be dismissed.

6. Before adverting the rival submissions, it is necessary

to extract the refund rejection order, the screenshot showing refund

rejection and the endorsement, which are hereunder:

"GOVERNMENT OF KARNATAKA (DEPARTMENT OF COMMERCIAL TAXES) The Karnataka Goods and service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 No.JCCT/DGSTO-06/RFD/186/LGSTO-075/2021-22 OFFICE OF THE Assistant Commissioner of Commercial Taxes, LVO-075, KIADB Building, Peenya nd Industrial Area, 2 stage, Bangalore - 560058.

Dated: 28.01.2022, Ph 080-28362910

FORM-GST-RFD-06 [See rule 92(1), 92(3), 92(4), 92(5) & 96(7)] Order No.: JCCT/DGSTO-06/RFD/186/LGSTO-07/2021-22 Dated:28-01-2022

To 29AAACA3834B1Z4 M/S. ABB INDIA LIMITED nd Plot No.4A.5 and 6, 2 Phase, Peenya Industrial Area, Bengaluru (Bangalore) Urban, Karnataka - 560058 Show cause notice No. (If applicable): ZL2912218749616, DT: 31-12-2021 Acknowledgment No.JCCT/DGSTO-06/RFD/186/LGSTO-075/2021-22, DT: 20-12-2021 Period: Feb-2020 -6- NC: 2025:KHC:47533 WP No. 17442 of 2025

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ARN No: AA291121062516E, DT: 30/11/2021 Excess payment of tax

Refund Rejection Order

Sir/Madam, This has reference to your above mentioned application for refund filed under section 54 of the Act, 2017. Upon examination of your application, the amount of refund sanctioned to you, after adjustment of dues (where applicable) is as follows:

Description ITST CGST SGST CESS 1. Amount of Refund / Interest 0 40,85,556 40,85,556 0 Claimed 2. Refund sanctioned on 0 0 0 0 provisional basis (Order No Date.) (if applicable) 3. Refund amount inadmissible 0 40,85,556 40,85,556 0 4. Gross amount to be paid 0 0 0 0 (1-2-3) 5. Amount adjusted against 0 0 0 0 outstanding demand (if any) under the existing law or under the Act. Demand Order No. Date: Act Period: 6. Net amount to be paid 0 0 0 0

Note: Show-cause notice in Form GST RFD 08 Dt: 31.12.2021 was issued for rejection of refund application and objections if any for the said proposals were called for in the notice. The taxable person has not filed any objections for the show cause notice. Hence, the refund application is hereby rejected.

Bank Account No. as per 2000149000 application Name of the Bank DEUTSCHE BANK Address of the Bank/ Branch RAHEJA TOWERS, 26-27, M G ROAD, BANGALORE - 560 001 IFSC DEUT0797BGL

*Strike out whichever is not applicable

1. I hereby sanction an amount of Rs.0-00 under IGST, Rs.0-00 under SGST and Rs.0-00 under CGST, Rs.0-00 UNDER CESS to M/S. ABB INDIA LIMITED having GSTIN-29AAACA3834B1Z4 under sub-section (5) of section 54 of the Act, 2017/under section 56 of the Act.

(a) and the amount is to be paid to the bank account specified by him in his application;

(b) the amount is to be adjusted towards recovery of arrears if any as specified at serial number 5 of the table above:

(c) an amount of NIL is to be adjusted towards recovery of arrears as specified at serial number 5 of the table above and the remaining amount of Rs.0-00 under IGST, Rs.0-00 under SGST and Rs.0-00 under CGST, Rs.0-00 UNDER CESS is to be paid to the bank account specified by him in his application.

Date: 28-01-2022 Sd/- Place: BANGALORE (MUKUNDA T)

Asst. Commr. Of Comml. Taxes, LGSTO-075 -7- NC: 2025:KHC:47533 WP No. 17442 of 2025

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Asst. Commissioner of Commercial Taxes Local Goods & Service Tax Office-75 Bangalore - 560 058

Screen Shot

Dashboard Services User Services My Applications Case Details

Paym PMT Release Date of ent APPLICATIONS Type of Order Order No. -03 Order Document Order Order No. No. No. NOTICE / ACKNOWLED GMENT REPLIES / REFUND2 Refund Sanction / UNDERTAKIN 28-01- ZF290122 801202217 Rejection Order NA G / REQUEST 2022 9965534 29801_LV (GST RFD-06) ORDERS O2802.pdf

AUDIT HISTORY

"Office of the Assistant Commissioner of Commercial Taxes, LGSTO-075, Plot No.2, 1st Floor, KIADB Building, Peenya Industrial Area, 14th Cross, 2nd Stage, Bengaluru - 560 058, Phone: 080 28362910 ENDORSEMENT

1. ABB INDIA LIMITED, is registered under the KGST Act, 2017 with GSTIN: 29AAACA3834B1Z4. It had applied for refund of GST of Rs.81,71,112/- under the category 'Excess payment of tax' for the tax period February-2020 as per refund application in RFD-01 vide ARN:

AA291121062516E Dt: 30/11/2021.

2. After observing some lapses, a Show Cause Notice (SCN) for rejection of refund application/inadmissible refund in FORM GST RFD-08 dated 31-12-2021 was issued by this office with an opportunity to do so. Since no reply was received by the undersigned authority, the refund rejection -8- NC: 2025:KHC:47533 WP No. 17442 of 2025

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order in FORM GST RFD-06 dated 28-01-2022 was issued rejecting the refund application and claim of refund of Rs.81,71,112/- for the factual and legal position as noted in the SCN issued in RFD-08.

3. In pursuance of the said order dated 28/01/2022, the taxable person has filed a letter dated 21-01-2022 which is received in this office on 01-02-2022 The said letter is in form of a reply to the SCN dated 31-12-2021 issued from this office. However, for the benefit of ready reference, the contents of the same are reproduced hereunder:

"We, M/s. ABB India Limited (hereinafter referred to as "ABB India" or "the Company"), having its registered office at. Plot No 4A 5 and 6. 2nd Phase, Peenya Industrial Area, Bengaluru (Bengaluru Urben), Karnataka - 560 058 registered under GST vide GSTIN 29AAACA383481Z4. At the outset, we acknowledge the receipt of the SCA referred above on 31-Dec-2021. A copy of the SCN is enclosed as Annexure A to this letter. Further, we thank your kind authority for granting additional time to respond to the said notice.

In the referred SCN, the learned Authority observed that "the transaction pertains to tax period from Dec-2019 to March-2020 and the company has issued credit notes on 28.10.2021. The said credit notes are not reflected in GSTR-1, GSTR-3B or GSTR-09 which was filed on 31.03.2021."

The supplier of goods or services or both is required to issue credit notes for the transactions of erroneously declared value or erroneously declared higher rate of tax or quantity received by recipient is less than the declared in tax invoice or any other similar reasons. In order to regularise such kind of situation the supplier is allowed to issue credit notes in the return for the month during which such credit note has been issued, but not later than September following the end of financial year in which such supply was made or the date of furnishing of the annual return, whichever is earlier as required under Sec. 34 of GST Act.

In the present case, the company has issued credit notes on 28.10.2021 for the transaction pertains to FY 2019-20 and thereby the tax payer has not complied the provision of the Sec. 34 of the GST Act. Hence, the claim of refund cannot be sanctioned."

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Our Submissions

1. We humbly submit that refund claim filed by the Company is in accordance with Section 54 of the CGST Act, 2017 and corresponding Karnataka State GST Act, 2017 and complies with all the requirement prescribed. Our submissions to the matters observed by the authority are being replied in the ensuing paragraphs. Refund is claimed for excess payment and not for tax/credit notes

2. It is submitted that the current refund claim is being filed for excess payment of tax which is not disputed.

3. The Company had a demerger of its business, consequent to which, all overseas project contracts were to be novated to the demerged entity by name Hitachi Energy India Limited (HEIL) (formerly known as ABB Power Products & Services India Limited (APPSIL). However, certain existing overseas project contracts could not be novated pursuant to the binding contract with the customer (in case of sale) or the supplier (in case of purchases). In such cases, the related purchase and sale relating to non-novated contracts were executed through ABB India as a pass thru in terms of Joint Operation Protocol Agreement.

4. The supplies made by ABB India to various overseas customers interalia included design, manufacture, test, deliver, install, complete and commission of Grid Substation involving both supply of goods and services. In case of projects located outside India, the supply of goods or services, required for the said project, were made

(a) from India to the said project site,

(b) from outside India to the project site, and

(c) domestically procured within the Project Country.

5. It is submitted that with regard to Sl. No. (b) & (c) above, the transaction between ABB India and HEIL arising from the demerger arrangement neither qualifies to be supply of goods nor supply of services.

6. These transactions were not leviable to GST, though the Company had inadvertently discharged GST. During the period Dec-2019 to Mar-2020, the Company has inadvertently issued "Tax Invoice with GST" to HEIL in India, while the supply of goods or services is from Non-

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Taxable Territory to Non-Taxable Territory without the subject goods or services being received in India.

7. Hence, due to such inadvertent error, the Company has collected and discharged tax on supplies which were not taxable and which was otherwise not due to the Government. Hence, the same ought not to be treated as tax but payment of excess amount to the Government. The purpose of issuance of credit note was to bring back the incidence of duty from the customer, to ABB India. Your authority would appreciate that the Company has not claimed the deduction of the credit note from the taxable turnover, while filing GST return for the month of Oct'2021. The table below illustrates the transaction:

Date Customer Document Amount Tax Tax Remarks period Dec' 19 HEIL Invoice 10,000 1,800 Dec' GST paid in Dec' 19 19 Oct' 21 HEIL Credit Note (10,000) (1,800) Oct' Benefits of credit 21 note is not considered by ABB India in GST returns, while the customer is refunded the tax wrongly charged by ABB India, by issuance of credit note to HEIL

8. Per the above, consequent to issuance of credit note, the incidence of tax wrongly charged is borne by the Company and a consequential refund claim is being filed, for tax wrongly discharged and paid by ABB India, for a non- taxable transaction.

9. It is further submitted that the credit notes issued under GST are governed by the terms of Section 34 of the CGST Act, 2017, which is reproduced below for easy reference:

(1) Where one or more tax invoices have been issued for supply of any goods or services or both and the taxable value or tax charged in that tax invoice is found to exceed the taxable value or tax payable in respect of such supply, or where the goods supplied are returned by the recipient, or where goods or services or both supplied are found to be deficient, the registered person, who has supplied such goods or services or both, may issue to the recipient one or

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more credit notes for supplies made in a financial year containing such particulars as may be prescribed. (2) Any registered person who issues a credit note in relation to a supply of goods or services or both shall declare the details of such credit note in the return for the month during which such credit note has been issued but not later than September following the end of the financial year in which such supply was made, or the date of furnishing of the relevant annual return, whichever is earlier, and the tax liability shall be adjusted in such manner as may be prescribed:

Provided that no reduction in output tax liability of the supplier shall be permitted, if the incidence of tax and interest on such supply has been passed on to any other person.

10. Per the above, it is submitted that in terms of Section 34 (1) of the CGST Act, 2017, credit note could be issued only where excess taxable value or tax charged is found or where goods are returned or goods or services are found to be deficient. However, Section 34 (1) does not contemplate to issuance credit note where a tax invoice was issued for a transaction which is not a supply under GST Law. Since the transaction between ABB India and HEIL are outside the purview of GST as detailed above, the provisions of Section 34 ought not to apply.

11. The Credit Note was merely issued to nullify or reverse the incidence passed on to HEIL and does not in any way be construed as issued under Section 34. However, since the SAP accounting system of the Company does not allow to issue Credit Note only for Tax Amount, the Company had issued Credit Note for Transaction Value and Tax thereon and issued Bill of Supply afresh for the value.

12. Since the credit note was issued with the sole purpose to reverse the incidence, the said Credit Notes were not reported and not required to be reported in GSTR-1 and GSTR 3B filed by the Company, it is submitted that the refund claimed by the Company is not against the credit notes and is for wrong payment of tax on a non-taxable transaction and the Company is rightly eligible for the same.

Time limit under Section 54 and not Section 34

13. In terms of Section 54(1) of the CGST Act, any person claiming refund of any tax and interest, if any, paid on such

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tax or any other amount paid by him, may make an application before the expiry of two years from the relevant date in the prescribed form and manner. Section 54 (1) is reproduced below for easy reference:

(1) Any person claiming refund of any tax and interest, if any, paid on such tax any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed:

Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 49, may claim such refund in the return furnished under section 39 in such manner as may be prescribed.

14. Further, Section 54 (8) specifically mentions that the person eligible for refund claim as detailed below:

(8) Notwithstanding anything contained in sub-section (5), the refundable amount shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to,-

(a) refund of tax paid on export of goods or services or both or on inputs or input services used in making such exports;

(b) refund of unutilised input tax credit under sub-section (3);

(c) refund of tax paid on a supply which is not provided, either wholly or partially, and for which invoice has not been issued, or where a refund voucher has been issued;

(d) refund of tax in pursuance of section 77;

(e) the tax and interest, if any, or any other amount paid by the applicant, if he had not passed on the incidence of such tax and interest to any other person; or

(f) the tax or interest borne by such other class of applicants as the Government may, on the recommendations of the Council, by notification, specify.

15. In the instant case, in terms of clause (e) above, the tax is paid by ABB India and by issuance of credit note has reversed the incidence of such tax, the eligible refund ought to be credited into the account of ABB India.

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16. Further, with regard to time limit it concerned, Explanation (2) to Section 54 prescribes the relevant date for various instances listed below:

(2) "relevant date" means,-

(a) in the case of goods exported out of India where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in such goods,-

(i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India; or

(ii) if the goods are exported by land, the date on which such goods pass the frontier; or

(iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;

(b) in the case of supply of goods regarded as deemed exports where a refund of tax paid is available in respect of the goods, the date on which the return relating to such deemed exports is furnished;

(c) in the case of services exported out of India where a refund of tax paid is available in respect of services themselves or, as the case may be, the inputs or input services used in such services, the date of,-

(i) receipt of payment in convertible foreign exchange or in Indian rupees wherever permitted by the Reserve Bank of India, where the supply of services had been completed prior to the receipt of such payment; or

(ii) issue of invoice, where payment for the services had been received in advance prior to the date of issue of the invoice;

(d) in case where the tax becomes refundable as a consequence of judgment, decree, order or direction of the Appellate Authority, Appellate Tribunal or any court, the date of communication of such judgment, decree, order or direction;

(e) in the case of refund of unutilised input tax credit under clause (ii) of the first proviso to sub-section (3), the due date for furnishing of return under section 39 for the period in which such claim for refund arises;

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(f) in the case where tax is paid provisionally under this Act or the rules made thereunder, the date of adjustment of tax after the final assessment thereof;

(g) in the case of a person, other than the supplier, the date of receipt of goods or services or both by such person; and

(h) in any other case, the date of payment of tax.

17. Hence, in the instant case, the Company has made excess payment of tax in respect of the transaction entered into with HEIL for the period from December 2019 to March 2020 on which no tax was required to be paid to the Government and accordingly, the refund claim filed is within the timelines as prescribed under Section 54.

18. It is humbly submitted that HEIL, on the basis of the same understanding as detailed above (transaction being wrongly taxed), has reversed the input tax credit of GST charged in respect of the invoices issued by ABB India for the period from December 2019 to March 2020.

19. Company has submitted CA Certificate to substantiate the absence of unjust enrichment as Annexure- R of the refund application. A copy of the challans in Form DRC-03 for reversal of input tax credit by HEIL are submitted as Annexure B to this reply

20. Accordingly, the instant claim i.e. refund of excess payment of tax is squarely covered in Section 54(1) & (8) of the CGST Act, 2017 and filed within the time-limit as permitted under Section 54.

21. Since the transaction between ABB India and HEIL are outside the purview of GST as detailed above, the provisions of Section 34 ought not to apply, particularly in the context of timelines is concerned.

22. Accordingly, the Company has rightly claimed refund under Section 54 and within the timelines and hence ought to be considered as eligible for refund.

We humbly request your kind authority to consider the above submissions as sufficient compliance of the matter and allow refund claimed for the said period. We pray for a personal hearing on the matter and submit that the above grounds are without prejudice to one another. Should your authority require further information or clarification, we shall be glad to provide the same to you.

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4. Further, the taxable person had also sought personal hearing to submit their plea/contentions. Accordingly personal hearing was accorded to the taxable person vide this office endorsement dated: 04-02-2022 and was asked to appear on 07-02-2022. Accordingly, Sri Pranesh T.N, Manager Taxation and Authorised Signatory and Sri Harshit Nahar, C.A and authorised representatives of M/s ABB INDIA LIMITED appeared for the personal hearing and reiterated their contentions as made in their submission dated: 21-01-2022 (filed on 01-02-2022). They were heard and their submissions are taken on record.

5. On scrutiny of the reply of the taxable person, it is ascertained that, in response to the SCN issued in RFD-08 dated 31-12-2021, the taxable person had submitted a request for adjournment of personal hearing and/or extension of due date for replying to SCN on 13-01-2022 online in GST Portal wherein it had requested for extension of date to reply for SCN to 01-02-2022 from scheduled date of 14-01-2022. But the said request was not populated to the undersigned authority due to which the RFD-06 was issued on 28-01-2022.

Hence, in the interest of natural justice, the reply of taxable person to the show-cause notice and the submissions made during the personal hearing are taken on record and same are verified with the refund application, documents submitted, show-Cause notice issued and Refund rejection order in RFD-06 passed on 28-01-2022 and following are observed

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The refund application cannot be considered for the following reasons:

1. The scrutiny of refund application along with the afore mentioned documents and submissions revealed that, the taxable person had issued tax invoices during December-2019 to March-2020 by collecting GST and declared the said turnover and taxes in the corresponding tax periods/ months as required under Section 37 in FORM GSTR-1 and under Section 39 in FORM GSTR-3B.

2. After furnishing a return under Section 37 (GSTR 1), 38 (GSTR 2A) and Section 39 (GSTR 3B) discovers any omission or incorrect particulars therein, other than as a result of scrutiny, audit, inspection or enforcement activity by the tax authorities, he shall rectify such omission or incorrect particulars in the return to be furnished for the month or quarter during which such omission or incorrect particulars are noticed, subject to payment of interest under this Act:

Provided that no such rectification of any omission or incorrect particulars shall be allowed after the due date for furnishing of return for the month of September or second quarter following the end of the financial year, or the actual date of furnishing of relevant annual return, which ever is earlier.

Here it is to be noted that, in the instant case, returns for the month of Dec 2019 to March 2020 should have been revised in any case on or before the date of filing

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of return for September 2020 i.e. 20.10.2020 since the annual return was filed on 26.02.2021.

3. Whereas, in the instant case, credit notes and bills of supply were issued for those invoices on 31-10-2021.

The said credit notes are beyond the time prescribed under Section 34 of the GST Act, 2017. Section 34 of CGST Act/SGST Act prescribes the provisions for issue of Credit Notes which are reproduced as under

for ready reference:

"Section 34: Credit and debit notes.-(1) Where one or more tax invoices have been issued for supply of any goods or services or both and the taxable value or tax charged in that tax invoice is found to exceed the taxable value or tax payable in respect of such supply, or where the goods supplied are returned by the recipient, or where goods or services or both supplied are found to be deficient, the registered person, who has supplied such goods or services or both, may issue to the recipient [one or more credit notes for supplies made in a financial year]containing such particulars as may be prescribed.

(2) Any registered person who issues a credit note in relation to a supply of goods or services or both shall declare the details of such credit note in the return for the month during which such credit note has been issued but not later than September following the end of the financial year in which such supply was made, or the date of furnishing of the relevant annual return, whichever is earlier, and the tax liability shall be adjusted in such manner as may be prescribed:

Provided that no reduction in output tax liability of the supplier shall be permitted, if the incidence of tax and interest on such supply has been passed on to any other person."

From the above it is evident that, the credit notes issued to the transactions reported in Dec 2019 to March 2020 are much beyond 20.10.2020 and

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therefore found to be not valid in terms of the time limitation mandated under Section 34 as narrated above.

4. With regard to the contention of the TP about the time limit for filing of Refund application cannot be considered, as the refund application itself is devoid of merits and beyond time limit as prescribed under Section 54 of the KGST Act, 2017. Hence, the contentions of the TP are not acceptable. Therefore, they are not accepted.

To recognise the significance of time frame fixed under the GST Act, 2017, it is pertinent to draw the attention of the TP to the landmark Constitutional bench judgment dated 28/10/2021 of the Hon'ble Supreme Court rendered in the case of Union of India Vs. Bharti Airtel Ltd & Ors (No:- CIVIL APPEAL NO. 6520 OF 2021 (ARISING OUT OF S.L.P. (C) NO. 8654 OF 2020), which has upheld the significance of "self-assessment scheme" and notification or correction of omissions or adjustments to be made or to cure the deficiencies etc., well within the time frame fixed under the GST Act. 2017. Underlining the sense of time stipulated to be followed, the Hon'ble Apex Court added that, it of other stakeholders, because of the cascading effect in their ties records. Thus, there is no scheme of relaxation of time which otherwise would defeat the very purpose of the Act in large.

Further, the Hon'ble Supreme Court in its recent judgment dated 10/12/2021 rendered in the case of Union of India & Ors Vs. AAP and Company (No. Civil Appeal No(s). 5978/2021) had challenged the validity of Circular issued by the CBIC Jurisdiction Form GSTR-3B is return or not - imposition on rectification of Form GSTR-3B in respect of the period which the error had occurred HELD THAT The judgement of the High Court has been expressly overruled by a three-Judge Bench decision of Hon'ble Supreme Court in Union of India Vs. Bharti Airtel Ltd & Ors (supra)- Finally the case is derided in favour of Revenue. CONCLUSION

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The ratio of the judgments (supra) squarely applies to the facts of the case on hand. In view of the above well settled legal position, the refund application submitted under Section 54(3) under the category of Excess payment of tax by the taxable person was liable to be rejected. And it was rejected accordingly. Thus, the refund rejection order in FORM GST RFD-06 dt. 28-01-2022 stands intact.

Place: Bengaluru Sd/- Date: 14-02-2022 Assistant Commissioner of Commercial Taxes LGSTO-75, Bengaluru

Asst. Commissioner of Commercial Taxes Local Goods & Service Tax Office-75 Bangalore - 560 058"

7. A perusal of the aforesaid refund rejection order along

with screenshot of refund rejection statement and the

endorsement, regarding submission as to refund application was

rejected, a detailed order was passed by respondent No.2 rejecting

the refund request of the petitioner.

8. Despite the aforesaid detailed order passed by

respondent No.2 rejecting the refund application of the petitioner,

the First Appellate Authority has misled/misconstrued the refund

rejection order and has summarily dismissed the appeal as not

maintainable, which is clearly contrary to the material on record as

referred to supra, by holding as under:

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"ORDER UNDER SECTION 107(11) OF THE KGST& CGST ACT,2017

The Appeal has been filed in Form GST-APL-01 through electronically vide e-appeal No. AD290522000700M dated: 3-5-2022 under Section 107 of the Karnataka Goods & Service Tax Act, 2017 against the Endorsement dated 14- 2-2022, which was served on the Appellant.

2. The Respondent vide endorsement dated: 14-02-2022 has rejected the application of the Appellant dated:21-01-

2022 for the claim of refund of excess payment of tax of Rs. 40,85,556-00 towards CGST and Rs.40,85,556-00 towards SGST U/s.54 of the Act for the tax period in February, 2020.

3. Aggrieved by the impugned endorsement dated:14-2- 2022, the Appellant has preferred this appeal.

4. The appeal against the endorsement was issued by the Respondent maintainable or not is examined with reference to the provision of Section 107(1) of the Act is reproduced here under:-

107-Appeals to Appellate Authority:- (1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Service Tax Act or the Union Territory Goods & Service Tax Act by an adjudicating authority may appeal to such appellate authority as may be prescribed within in three months from the date on which the said decision or order is communicated to such person.

[emphasis supplied by me]

4. The above provision make it clear that the filing of an appeal to Appellate authority only on the "decision" or "Order" passed under this Act. Here in this case, the Appellant has filed an appeal in Form GST-APL. 01 against

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the "Endorsement" as the "Endorsement" is neither an order nor decision under the above said provision and, therefore, the Respondent in rejecting the application of the Appellant by issue of the endorsement against which an appeal cannot be preferred and, therefore, the appeal filed against endorsement is not maintainable.

5. In view of the above, I hereby pass the following orders.

ORDER

The appeal in GST/AP-10/2022-23 for the tax period in February, 2020 is hereby dismissed."

9. As can be seen from the order of the Appellate

Authority, there is no finding recorded on merits by the Appellate

Authority, which has proceeded to summarily reject the appeal on

the erroneous premise that no refund rejection order was passed,

which is factually incorrect and contrary to the material on record.

It is also noticed that the First Appellate Authority has summarily

rejected the appeal, without recording any finding on merits and

without appreciating that respondent No.2 passed the order as

refund rejection order, I deem it just and appropriate to allow the

petition by setting aside Annexure-A and remit the matter back to

respondent No.1 for reconsideration afresh, in accordance with

law.

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10. In the result, I pass the following:

ORDER

(i) The petition is allowed.

(ii) The impugned order at Annexure-A dated

21.10.2023 passed by respondent No.1 is hereby

set aside.

(iii) The matter is remitted back to respondent No.1 -

the First Appellate Authority for reconsideration of

the matter afresh, in accordance with law.

(iv) The appeal filed by the petitioner is held to be

maintainable and appealable before the First

Appellate Authority.

(v) The petitioner is directed to appear before the

First Appellate Authority on 08.12.2025 without

awaiting further notice.

(vi) The First Appellate Authority is directed to dispose

of the appeal filed by the petitioner on merits,

within a period of four months from 08.12.2025.

Sd/-

(S.R.KRISHNA KUMAR) JUDGE BMC: List No.: 3 Sl No.: 2