21-01-2022 – Refund applications will also be entitled for the extended timelines as per Supreme Court’s extension order in view of COVID Pandemic

The Hon’ble High Court of Bombay vide its order dated 10 January 2022 in the matter of Saiher Supply Chain Consulting (P.) Ltd.  Vs.  Union of India in Writ Petition (L.) No. 1275 of 2021 held that the limitation extension order passed by the Hon’ble Supreme Court is also applicable upon the refund applications filed under GST Law.

The Petitioner for the period July 2018 to September 2018 filed refund application on 21 August 2020 which was rejected while pointing out certain deficiencies vide Deficiency Memo dated 05 September 2020. Petitioner again filed refund application on 08 September 2020 which was again rejected vide another Deficiency Memo dated 23 September 2020. Thereafter, for the third time, Petitioner filed refund application on 30 September 2020 which was rejected vide Order dated 26 November 2020 on the grounds that refund application is time barred.

The Petitioner preferred the Writ Petition under Article 226 of the Constitution of India, inter-alia seeking order and direction to restore the 3rd refund application dated 30 September 2020. The Petitioner filed the Writ Petition in view of the Hon’ble Supreme Court’s Order dated 23 March 2020: Cognizance of Extension of limitation – 2020 SCC online SC 343, in Suo moto Writ Petition (Civil) No. 3 of 2020 and also referred to Order dated 23 September 2021 in Misc. Application No. 665 of 2021 in the same Suo moto Writ Petition. 

Due to the onset of COVID-19 pandemic, the Hon’ble Supreme Court took suo moto cognizance of the situation arising from difficulties faced by the litigants across the country in filing petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State), thereby allow the exclusion the period commencing from 15 March 2020 to 02 October 2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03 October 2021. In the event the actual balance period of limitation remaining, with effect from 03 October 2021, is greater than 90 days, that longer period shall apply.

It was the contention of the Petitioner that the 3rd refund application was filed on 30 September 2020, i.e., between 15 March 2020 and 02 October 2021, thus well within the time as per the Hon’ble Supreme Court’s Extension Order. The Petitioner further submitted that the extension granted by the Hon’ble Supreme Court by exercising powers under Article 142 read with 141 declaring that the said order was binding order within the meaning of Article 141 on all Courts/Tribunals and Authorities and the 3rd refund application could not have been rejected on the ground of limitation. Petitioner also placed reliance on the judgment of the Madras High Court delivered on 28 September 2021 in the case of M/s. GNC Infra LLP v. Assistant Commissioner (Circle), in W.P. No. 18165 & 18168 of 2021.

The Respondent opposed the writ petition on the grounds that the 3rd refund application was required to be filed by the Petitioner within two years in accordance with the Circular No. 20/16/04/18 – GST dated 18 November 2019 under Section 54(1) of the CGST Act, 2017.

Hon’ble High Court of Bombay took cognizance of the issue and observed the Hon’ble Supreme Court’s order of extension of limitation wherein the directions were issued that in computing the period of limitation in any Suit, Appeal, Application and or proceedings, the period from 15 March 2020 till 02 October 2021 shall stand excluded. It was held that the period of limitation prescribed in the said Circular under Section 54(1) also stood excluded and the Respondent is also bound by the said order dated 15 March 2020 and the subsequent order dated 23 September 2021, thus the 3rd refund application filed by the Petitioner was within the limitation prescribed under the said Circular dated 18 November 2019 read with section 54(1) of the Act.

The Hon’ble High Court with the above findings quashed and set aside the impugned order dated 26 November 2020 and restored the 3rd refund application of the Petitioner with the directions to the Respondent to consider the refund application on merits and in accordance with law.

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