# M/s Alok Traders v. Commissioner, Commercial Taxes, Lucknow & Ors

- **Citation:** (2022) 5 ILRA 1569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-27
- **Case number:** Writ Tax No. 419 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-alok-traders-v-commissioner-commercial-taxes-lucknow-ors-48448
- **Pages:** 19

## Headnote

A. Civil Law - C.G.S.T. Act, 2017 - Section
54 (1) - CGST Rules - Rule 89 - As per
provisions of Section 54 (1) of C.G.S.T. Act the
petitioner could claim refund by making an
application before the expiry of two years from
the relevant date in such form and manner as
may be prescribed. The relevant date for the
purposes of present case is referable to
explanation 2(d) appended to Section 54 which
provides that incase where 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 would be the relevant
date.

B. Construction which permits one to take
advantage of one's own wrong or to impair
one's own objections under a Statute should be
disregarded. The interpretation should as far as
possible be beneficial in the sense that it should
suppress the mischief and advance the remedy
without doing violence to the language. No one
can take advantage of his own wrong. Applying
the afore settled principles the respondents
cannot be allowed to take advantage of their
own wrong so as to deny the payment of
interest to the petitioner on delayed refund.

Writ Petitions allowed . (E-12)

List of Cases cited:-

## Text

_Characters 0–39,799 of 62,682. This is a partial read: ask again with offset=39799 for what follows._

5 All. M/s Alok Traders Vs. Commissioner, Commercial Taxes, Lucknow & Ors.
1569
(2022)05ILR A1569
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No. 419 of 2022
with
Writ Tax No. 424 of 2022

M/s Alok Traders ...Petitioner
Versus
Commissioner,
Commercial
Taxes,
Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Pooja Talwar

Counsel for the Respondents:
C.S.C.

A. Civil Law - C.G.S.T. Act, 2017 - Section
54 (1) - CGST Rules - Rule 89 - As per
provisions of Section 54 (1) of C.G.S.T. Act the
petitioner could claim refund by making an
application before the expiry of two years from
the relevant date in such form and manner as
may be prescribed. The relevant date for the
purposes of present case is referable to
explanation 2(d) appended to Section 54 which
provides that incase where 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 would be the relevant
date.

B. Construction which permits one to take
advantage of one's own wrong or to impair
one's own objections under a Statute should be
disregarded. The interpretation should as far as
possible be beneficial in the sense that it should
suppress the mischief and advance the remedy
without doing violence to the language. No one
can take advantage of his own wrong. Applying
the afore settled principles the respondents
cannot be allowed to take advantage of their
own wrong so as to deny the payment of
interest to the petitioner on delayed refund.

Writ Petitions allowed . (E-12)

List of Cases cited:-

1. Commissioner of Customs (PreVs) Mumbai Vs
M. Ambalal 2010(260) ELT 487(Para 11)

2. U.O.I. Vs Shakti LPG 2008(223) ELT
129(SC)(Para 9).
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Jayant Banerji, J.)

1. Heard Ms. Pooja Talwar, learned
counsel for the petitioner and learned
Additional Chief Standing Counsel for the
State-respondents.

2. Personal affidavit of respondent
no.1 dated 25.04.2022 has been filed today,
which is taken on record.

3. The aforesaid two writ petitions
have been filed praying for the following
reliefs:-

Reliefs as prayed in WritTax No.419 of 2022
(a) Issue a writ, order or
direction in the nature of
MANDAMUS directing the
respondent
no.3
and
respondent no.2 to refund
the amount of security of
Rs.4,70,400/- deposited in
the form of Draft under
Section 129 (1) of the U.P.
Goods and Service Tax Act,
2017 due to the petitioner
along with interest under
section 56 in compliance of
the appellate order dated
30.06.2018 passed in Appeal
No. 10 for the assessment
Year 2017-18;
Reliefs as prayed in WritTax No.424 of 2022
(a) Issue a writ, order or
direction in the nature of
MANDAMUS directing the
respondent
no.3
and
respondent no.2 to refund
the amount of security of
Rs.5,60,000/- deposited in
the form of Draft under
Section 129 (1) of the U.P.
Goods and Service Tax Act,
2017 due to the petitioner
along with interest under
section 56 in compliance of
the appellate order dated
29.06.2018 passed in Appeal
No. 14 for the assessment
Year 2017-18;
1570 INDIAN LAW REPORTS ALLAHABAD SERIES
(b) Issue a writ, order or
direction in the nature of
MANDAMUS directing the
respondent No. 3 to provide
the
temporary
ID
and
password on the official
website so as to enable the
petitioner
to
file
the
ONLINE
application
required under Rule 89 of
the U.P. Goods and Service
Tax Rules, 2017;
(c) Issue any other suitable
writ, order or direction as
this Hon'ble
Court may
deem fit and proper in the
circumstances of the case in
the facts and circumstances
of the case;
(d) Award the costs of the
petition to the petitioner.
(b) Issue a writ, order or
direction in the nature of
MANDAMUS directing the
respondent No. 3 to provide
the
temporary
ID
and
password on the official
website so as to enable the
petitioner
to
file
the
ONLINE
application
required under Rule 89 of
the U.P. Goods and Service
Tax Rules, 2017;
(c) Issue any other suitable
writ, order or direction as
this Hon'ble Court may
deem fit and proper in the
circumstances of the case in
the facts and circumstances
of the case;
(d) Award the costs of the
petition to the petitioner.

4. Since facts and issues involved in
both the writ petitions are similar and interparties, therefore, with the consent of
learned counsels for the parties, both the
writ petitions are being heard together and
facts of Writ-Tax No.419 of 2022 are being
noted.

Writ-Tax No.419 of 2022

5. The petitioner is a registered dealer
dealing in tobaco. His place of business is
at Vileshwar Road, Near Talab, PostKunjrao, District-Anand (Gujarat). While
certain goods sold by him were being
transported
through
vehicle
bearing
registration No.GJ06/AX/7576,
it was
intercepted by the Assistant Commissioner,
Mobile Squad Unit-5, State Tax, Jhansi and
an order dated 30.12.2017 under Section
129(3) of the Uttar Pradesh Goods and
Service Tax Act, 2017 (hereinafter referred
to as the 'Act, 2017) was passed demanding
tax of Rs.2,35,200/- and penalty of equal
amount, total Rs.4,70,400/-, for release of
goods. Although the petitioner is a
registered dealer and all particulars relating
to him were well mentioned in the
accompanying
invoice
and
other
documents, yet the aforesaid Assistant
Commissioner, Mobile Squad Unit created
at its own a temporary ID and released the
goods
on
deposit
of
the
aforesaid
demanded amount by the petitioner by an
account payee bank draft.

6. Against the aforesaid order dated
30.12.2017 under Section 129(3) of the
Act, 2017, the petitioner filed an appeal
under Section 107 of the Act, 2017 before
the appellate authority, which was allowed
by order dated 30.06.2018. Thereafter, the
petitioner moved a refund application dated
09.07.2018 alongwith a copy of the
appellate order (received by the respondent
no.3 on 11.07.2018) incorporating therein
the operative portion of the appellate order,
which is reproduced below:-

"सेवा में

श्रीमान
अभसए
कभम०
वाभणज्य
कर/राज्य कर / सचल दल/ पूंचम इकाई, झॉसी

भवषय:
ररफूंड
हेतु
प्राथशनापत्र

वषश: 2017.18, उ०प्र० माल एवूं सेवाकर
अभधभनयम 2017 के अन्तगशत

आदिणीय मह दय.

भनवेदन है भक वाहन सूंख्या : जी जे
06 ए एक्स / 7576 के द्वारा पररवहन भकये जा
रहे माल को श्रीमान जी के द्वारा रोका, एवूं प्राथी
से कर एवूं अथशदण्ड के रूप में रू०: 4700000
जमा कराये।

प्राथी के द्वारा उक्त आदेर् के भवरुद्ध
माननीय एडीर्नल कभमश्नर / ग्रेड 2/ अपील /
भद्वतीय वाभणज्य कर / राज्य कर झााँसी के
न्यायालय में अपील दान्धखल की जो अपील
सूंख्या : 10/ 2018 वषश 2017.18 उ०प्र० माल एवूं
सेवाकर अभधभनयम 2017 की धारा 129/3/ के
अन्तगशत पूंजीकृत हुयी। माििीय न्यायािय के
5 All. M/s Alok Traders Vs. Commissioner, Commercial Taxes, Lucknow & Ors.
1571
द्वािा आदेश सोंख्या 17 लद० 30.6.2018 के
द्वािा लिम्न आदेश पारित लकये -

" अपील सूंख्या: 17/18 स्वीकार की
जाती है, तथा सचल दल अभधकारी के द्वारा
उ०प्र० माल एवूं सेवाकर अभधभनयम 2017 की
धारा 129/3/ के अन्तगशत पाररत आदेर् सूंख्या :
236 भदo : 30.12.2017 समाप् भकया जाता है,
माल को भबना जमानत अवमुक्त भकये जाने के
आदेर् भदये जाते है । यलद अपीिकताग के द्वािा
उक्त मद में क ई धििालश/ बैंक र्ािोंिी िमा
की र्यी ह त वह अपीिकताग क
लियमािुसाि वालपसी य ग्य है।"

प्राथशना

अतः प्राथी का भवनम्र भनवेदन है भक सूंगत
वषश में अभधक जमा धनराभर् वाभपस करने की
कृपा करे ।

 िवदीय

भदनाूंक : 9-7-2018

सवश्री आलोक टरेडसश,
 भवलेश्वर रोड भनयर तालाब,

पोस्ट- कूंजर, आनन्द 388335 गुजरात

जी एस टी नूं. 24PVVPM
3807-1ZW

सलूंग्न:

माननीय एडीर्नल कभमश्नर / ग्रेड 2 /
अपील / वाभणज्य कर झॉसी के द्वारा पाररत
आदेर् की कॉपी"

7. Since the respondents have neither
refunded the amount nor made any
communication, therefore, the petitioner
moved
applications/reminders
dated
08.12.2020, 18.01.2021 and 25.01.2021.
Thereafter, the respondents sent letter
no.92, dated 27.01.2021 and letter no.102,
dated
12.02.2021
to
the
petitioner
informing as under :-

"पत्र सोंख्या - 92 लदिाोंक 27-01-2021

"मूि पत्राविी की िााँच पि यह प्रकाश
में आया लक रू470400 क माचग 2018 क
आि क धिीघि लमिा के िाम पि लदये र्ये
TMP - ID पि िमा किा लदया र्या है।
भजसकी एक प्रभत आपको स चनाथश उपलब्ध
कराई जा रही है। उक्त दान्धखल प्राथशना पत्र के
क्रम में जााँच पर भविागीय सवशर पर सम्बूंभधत
लन्धम्बत आर एफ डी - 01 का ए आर एन नहीूं
पाया गया है। भजसकी अनुपन्धस्थभत में उक्त जमा
धनराभर् वाभपस नहीूं ली जा सकती है।"

पत्र सोंख्या- 102 लदिाोंक 12-022021

"आपको भनदेभर्त भकया जाता है भक
केन्द्रीय/राज्यकर अभधभनयम-2017 के अन्तशगत
फामश जी एस टी - आर एफ डी 01 इलैक्टराभनक्ली
भविागीय पोटशल पर दान्धखल करते हुये उक्त का
ए आर एन नम्बर उपलब्ध कराये।"

8. The petitioner again submitted an
application dated 01.06.2021 before the
respondent no.3. In paragraphs 4, 5 and 6
of the application dated 01.06.2021, the
petitioner has stated as under :-

"4/ यह लक उक्त सम्यव्यवहाि
उत्ति प्रदेश प्रान्त के बाहि से उत्ति प्रदेश
प्रान्त के भीति से सिोंलधत है । लिस पि
आई िी एस िी के प्रावधाि िार्ू ह ते हैं।
िबलक िीमाि िी के द्वािा समस्त धििालश
सी िी एस िी एोंव एस िी एस िी के मद में
िमा की है ।

5/ यह लक िीमाि िी के द्वािा
लदिाोंक 12-02-2020 के पूवग प्राथी क क ई
िैम्पिेिी आईडी से उक्त धििालश िमा ह िे
की िािकािी िहीों दी है औि ि ही क ई
पासवडग/ म बाईि ििि उपिब्ध किाया है।
लिसमें लक रिर्ण्ड के प्राथगिा पत्र का ए आि
एि ििि आ सके ।

6/ यह लक प्राथी िी एस िी
अलधलियम के अन्तगर्त पोंिीकृत ह िे के बाद
1572 INDIAN LAW REPORTS ALLAHABAD SERIES
भी उक्त धििालश िैम्पिेिी आई डी में क्य
िमा की र्यी आि तक स्पष्ट िहीों लकया र्या
है ।

7/ यह भक प्राथी को उक्त समस्त
धनराभर् मय व्याज के वाभपस करने की कृपा
करे। तथा प्राथी को यह मागशदर्शन देने की कृपा
करे भक श्रीमान जी के द्वारा जो टैम्परेरी आई डी
बनाकर प्राथी के द्वारा भदये गये डराफ्ट को जमा
भकया है उसका ररफण्ड भकस प्रकार से होगा ।"

9. Thereafter, the respondent no.3 sent
a letter no.58, dated 16.07.2021 to the
petitioner stating as under :-

"पत्राूंक- 58 / 21-22 / अभस०कभमoस0द0
पूं0 ई० अम्बावाय, झौूंसी।

कायाशलय
-
अभसस्टेंट
कभमश्नर
(प्रिारी) स0द0 पूंचम इकाई, अम्बावाय, झााँसी।

भदनाूंक 16 जुलाई 2021

सवश्री आलोक टरेडसश,

भवलेश्वर रोड भनयर तालाब,

पोस्ट- कूंजर, आनन्द गुजरात 388335

आप द्वारा भदनाूंक 08.07.2021 को प्राप्
कराये गये "ररफण्ड हेतु प्राथशना पत्र" का
अवलोकन भकया गया। आपको प वश में िी स भचत
भकया गया था वाहन सूंख्या (GJ06AX7576 एवूं
वाहन सूंख्या GJ23Y6273 से सम्बन्धित अथशदूंड
के जमा की कायशवाही उस समय प्रिावी पत्र सूं०
स० द० नकद धनराभर् जमा 2017-18 /
1718046 / वाभणज्य कर, कायाशलय कभमश्नर,
वाभणज्य कर प्रदेर् (सचल दल अनुिाग),
लखनऊ भदनाूंक नवूंबर 7, 2017 तथा पत्र सूं०
स०दo नकद धनराभर् जमा 2017-18 / 1405 /
1718031 / वाभणज्य कर, कायाशलय कभमश्नर,
वाभणज्य कर प्रदेर् (सचल दल अनुिाग),
लखनऊ भदनाूंक अगस्त 7, 2017 के क्रम में की
गयी थी। आप द्वािा लदए र्ए प्राथगिा पात्र में
पासवडग की माोंर् की िा िही है ि लक एक
तकिीकी समस्या है, लिसके लिए ज्वाइन्ट
कलमश्नि (आई०िी०अिुभार्) मुख्यािय से
सम्पकग किते हुए मार्गदशगि माोंर्ा र्या है।
साथ ही आपको पुनः अवगत कराया जाता है भक
फोन नम्बर एवूं ररफण्ड फाईल करने सम्बिी
अन्य भकसी तकनीकी समस्या के भलए आप स्वयूं
िी
https://selfservice.gstsystem.in/
पर
सम्पकश करते तकनीभक समस्या के भलए टोकन
जेनेरेट करते हुए प्रयास करें एवूं इस कायाशलय
को िी उक्त प्रयासोूं से अवगत कराये।

 (र्रद प्रताप भसूंह)

 अभसस्टेंट
कभमश्नर
(प्रिारी) वाभणज्य कर,

 सचलदल मूंचम इकाई, झाूंसी।"

10. The petitioner again submitted an
applications
dated
27.07.2021
and
14.02.2022 before the respondent no.3 and
the Joint Commissioner IT Division,
Commercial Tax/State Tax, Gomti Nagar,
Lucknow as eighth reminder in which the
petitioner
again
mentioned
that
the
respondent no.3 has deposited the draft
submitted by him by making at his own a
temporary ID and, therefore, it may be
guided as to how the amount would be
refunded to the petitioner pursuant to the
appellate order. Since nothing was done by
the respondents, therefore, the petitioner
has filed the present writ petitions.

11. On 28.03.2022, this Court
passed the following order:-

"Heard learned counsel for the
petitioner and learned Standing Counsel for
the respondents.

A
sum
of
Rs.
04,70,400/-
deposited by the petitioner through bank
draft pursuant to the order of the
respondent no.2 under Section 179 (1) of
the CGST/UPGST Act, 2017 is not being
refunded, despite the order has been set
5 All. M/s Alok Traders Vs. Commissioner, Commercial Taxes, Lucknow & Ors.
1573
aside by the appellate authority vide order
dated 30.06.2018. The petitioner moved
physical application before the respondent
no.3 requesting to provide the Treasury
Challan through which bank draft was
deposited. It is only thereafter, the
respondent no.3 has intimated to the
petitioner that by letter dated 27.01.2021
the aforesaid bank draft was deposited in
the name of Alok Dharnidhar Mishra on
Temporary-ID. Again petitioner wrote
several letters to the respondents to provide
password so that the petitioner may
generate A.R.N. for R.F.D.-01. In response
to it, the respondent no.3 sent a letter to the
petitioner dated 16.07.2021 in which he
mentioned, as under:-

आप द्वारा भदए गए प्राथशना पत्र में
पासवडश की मााँग की जा रही है जो भक एक
तकनीकी समस्या है, भजसके भलए ज्वाइन्ट
कभमश्नर
(आई०टी०अनुिाग)
मुख्यालय
से
सम्पकश करते हुए मागशदर्शन माूंगा गया है।

Again the petitioner has moved
several applications before the respondent
no.3 including the applications dated
27.07.2021 and 14.02.2022 requesting for
password and also to guide how his
amount shall be refunded. However,
nothing has been done by the respondents
so far, as evident from the instructions
dated 07.03.2022 produced today by the
learned Standing Counsel which further
shows
that
the
respondents
have
attempted to mislead the Court and very
conveniently
suppressed
the
facts
aforementioned.

Under the circumstances, we
direct the respondent no.1 to file counter
affidavit by means of his personal affidavit
and show cause that why exemplary cost be
not imposed.

Put up as a fresh case before the
appropriate bench on 04.04.2022."

12. It is only after this Court passed
the order, the refund was sanctioned to
the petitioner on 31.03.2022 and it was
paid on 04.04.2022.

13. On 04.04.2022, the following
order was passed by this Court:-

"1. Heard Ms. Pooja Talwar,
learned counsel for the petitioner and
learned Standing Counsel for the Staterespondents.

2. On 28.03.2022, this Court
passed the following order:-

"Heard learned counsel for the
petitioner and learned Standing Counsel for
the respondents.

A
sum
of
Rs.
04,70,400/-
deposited by the petitioner through bank
draft pursuant to the order of the
respondent no.2 under Section 179 (1) of
the CGST/UPGST Act, 2017 is not being
refunded, despite the order has been set
aside by the appellate authority vide order
dated 30.06.2018. The petitioner moved
physical application before the respondent
no.3 requesting to provide the Treasury
Challan through which bank draft was
deposited. It is only thereafter, the
respondent no.3 has intimated to the
petitioner that by letter dated 27.01.2021
the aforesaid bank draft was deposited in
the name of Alok Dharnidhar Mishra on
Temporary-ID. Again petitioner wrote
several letters to the respondents to provide
password so that the petitioner may
generate A.R.N. for R.F.D.-01. In response
to it, the respondent no.3 sent a letter to the
petitioner dated 16.07.2021 in which he
mentioned, as under:-

आप द्वारा भदए गए प्राथशना पत्र में
पासवडश की मााँग की जा रही है जो भक एक
तकनीकी समस्या है, भजसके भलए ज्वाइन्ट
1574 INDIAN LAW REPORTS ALLAHABAD SERIES
कभमश्नर
(आई०टी०अनुिाग)
मुख्यालय
से
सम्पकश करते हुए मागशदर्शन माूंगा गया है।

Again the petitioner has moved
several applications before the respondent
no.3 including the applications dated
27.07.2021 and 14.02.2022 requesting for
password and also to guide how his amount
shall be refunded. However, nothing has
been done by the respondents so far, as
evident
from
the
instructions
dated
07.03.2022 produced today by the learned
Standing Counsel which further shows that
the respondents have attempted to mislead
the Court and very conveniently suppressed
the facts aforementioned.

Under the circumstances, we
direct the respondent no.1 to file counter
affidavit by means of his personal affidavit
and show cause that why exemplary cost be
not imposed.

Put up as a fresh case before the
appropriate bench on 04.04.2022."

3. Today, a counter affidavit by
means
of
personal
affidavit
of
the
respondent no.1 has been filed by the
learned Standing Counsel, which is taken
on record.

4.
Learned
counsel
for
the
petitioner has also produced before the
Court a letter dated 31.03.2022 said to have
been written by the petitioner to the
Additional
Commissioner,
Grade-1,
Commercial Tax, Jhansi in the matter of
present writ petition which is also kept on
record. The aforestated letter is reproduced
below:-

"सेवा में,

श्रीमान
एडी०
कभम०
ब्रेड-1
वाभणज्यकर झााँसी।

भवषय -रर सूंख्या-419/2020 ररफण्ड
प्राथशना पत्र वषश 2017-18

आदरणीय महोदय,

भनवेदन है भक वाहन सूंख्या: जी जे 06
ए एक्स / 7576 के द्वारा पररवहन भकये जा रहे
माल को श्रीमान अभस0 कभम०/ सचल दल /
पूंचम इकाई झााँसी के द्वारा रोका, एवूं प्राथी से
कर एवूं अथशदण्ड के रूप में रू० : 470400 जमा
कराये। भजसके सम्बूंध में प्राथी ने माननीय उच्च
न्यायालय इलाहबाद के समक्ष उक्त ररट
याभचका दान्धखल की है भक प्राथी को ररफण्ड
र्ीघ्र से र्ीघ्र भदलाया जाये । इस सम्बूंध में
माननीय उच्च न्यायालय इलाहबाद के द्वारा
भनणशय भदनाूंक 28-03-2022 के द्वारा कभम०
वाभणज्यकर उत्तर प्रदेर् को ररफण्ड के सम्बूंध
में भनदेर् भदये है। मेरी समस्या की जानकारी जब
श्रीमान कभम० वाभणज्यकर उत्तर प्रदेर् को हुई
तब उनके द्वारा अपने अथक प्रयास से जी एस
टी एन उच्चाभधकारी से सम्पकश भकया गया तब
उन्हें यह जानकारी हुई भक टैम्परेरी आई डी में
जमा धनराभर् के ररफण्ड के सम्बूंध में एक
भवषम तकनीकी समस्या है। लेभकन कभम०
वाभणज्यकर उत्तर प्रदेर् द्वारा इस सम्बूंध में जी
एस टी एन के उच्चाभधकाररयोूं से व्यन्धक्तगत
रूभच लेते हुये वाताश की गयी और वाताश करने पर
मेरी 3 साल पुरानी तकनीकी समस्या का
समाधान तलार्ा गया। भजसके कारण ई मेल
आई डी एवूं पासवडश सेट करने की समस्या का
समाधान हुआ । मै अनुग्रहीत हाँ भक माननीय
कभम० महोदय के सूंज्ञान में मेरा प्रकरण आने
पर मेरी समस्या का तीव्र गभत से समाधान
कराया। अब मुझे उक्त ररफण्ड के सम्बूंध में
वाभणज्यकर/ राज्यकर भविाग से कोई िी
भर्कायत नहीूं है। इस सम्बूंध में माननीय कभम०
वाभणज्यकर उत्तर प्रदेर् के द्वारा अपने अथक
प्रयास से प्राथी को आई डी पासवडश उक्त
ररफण्ड भदलाये जाने सम्बूंभधत समस्त कायशवाही
प णश कर ली है। भजसके कारण अब प्राथी को
उक्त ररफण्ड के सम्बूंध में अब कोई परेर्ानी
नहीूं है। प्राथी ने माननीय उच्च न्यायालय
इलाहबाद के समक्ष जो ररट याभचका दान्धखल की
है भजसमें सुनवाई की भतभथ 04-04-2022 भनयत
5 All. M/s Alok Traders Vs. Commissioner, Commercial Taxes, Lucknow & Ors.
1575
है उसे प्राथी अब वाभपस ले रहा है। इस सम्बूंध में
प्राथी में अपने अभधवक्ता को िी स भचत कर
भदया है।

भदनाूंक - 31-03-2022

िवदीय

 सवश्री आलोक टरैडसश,

भवलेश्वर रोड भनयर तालाब,

पोस्ट- कूंजर आनन्द 388335

गुजरात

जी एस टी नूं. 24 BPVVPM

 3807-1ZW

प्रभतभलभप - माननीय कभम० वाभणज्यकर /
राज्यकर उत्तर प्रदेर् को इस धन्यवाद के साथ
भक उनके सूंज्ञान में मेरा तथ्य आते ही उन्होूंने
मेरी समस्या का तीव्र गभत से समाधान कराया ।
इसके भलये में उनका सदैव अिारी रहाँगा।"

सवश्री आलोक टरैडसश"

5. Perusal of the aforequoted
letter dated 31.03.2022 said to have been
written by the petitioner to the Additional
Commissioner, Grade-1, Commercial Tax,
Jhansi, who is not even the respondent in
the present petition, prima facie, shows
that the said letter appears to have been
procured to get the writ petition
dismissed
as
withdrawn
so
that
adjudication on merits may not take
place and the question as posed by the
Court in its order dated 28.03.2022 with
regard to the imposition of exemplary
cost may not be adjudicated.

6. Considering the facts and
circumstances of the case, we direct the
respondent no.1 to file his personal
affidavit explaining the circumstances and
the procurement of the aforequoted letter,
within three days from today.

7. Put up as a fresh case before
the appropriate Bench on 07.04.2022
alongwith the records of Writ-Tax
No.424 of 2022."

 (emphasis supplied)

14. Since in the aforequoted order
dated 04.04.2022, this Court noticed that
certain letters have been procured by the
respondent so as to avoid to comply with
the direction given in paragraph 5 of the
order of this Court dated 04.04.2022, the
respondent no.1 filed her personal affidavit
dated 06.04.2022 stating in paragraph 5, as
under :-

"5. That in reply to the same, the
Additional
Commissioner
Grade-1,
Commercial Tax, Jhansi has informed that
the said letter has been given by the
petitioner's counsel Sri Naresh Kumar
Gupta, Advocate Jhansi out of his own
willingness and there was no pressure on
him to do so. A true copy of letter dated
06.4.2022
written
by
Additional
commissioner Grade-1 jhansi and letter
dated 31.3.2022 given by advocate Shri
Naresh Kumar Gupta are being appended
herewith and marked as Annexure-1 to this
affidavit."

15. Perusal of Anenxure-1 to the
aforesaid
personal
affidavit
dated
06.04.2022 shows that at page 7 is the letter
of the Additional Commissioner dated
06.04.202 and at pages 8 and 9 are two
letters, both dated 31.03.2022 (one relating
to Writ-Tax No.419 of 2022 and the other
relating to Writ-Tax No.424 of 2022),
which is said to have been signed by the
counsel at Jhansi.

16. As per reliefs sought in the writ
petitions, the petitioner has prayed for
refund of the amount and grant of
interest. Under the circumstances, learned
counsel for the petitioner has now
pressed for the relief for grant of interest
and, therefore, this Court heard learned
counsels for the parties and passed the
order dated 21.04.2022, as under :-
1576 INDIAN LAW REPORTS ALLAHABAD SERIES

"1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the respondents.

2. High handedness, abuse of
power and harassment of dealers by the
respondents are evident on record and also
reflected from the orders passed by this
Court in the leading petition, being WritTax No.424 of 2022 as well as the orders
dated 28.03.2022 and 04.04.2022 passed in
the connected Writ-Tax No.419 of 2022.

3. From the orders dated
28.03.2022, it is evident that despite the
petitioner succeeded in appeal, the
respondents, on one pretext or the other,
and also on account of dereliction in
their duty, have not given effect to the
appellate order to grant refund to the
petitioner of the amount deposited by
him. Despite our order dated 18.04.2022,
in the two personal affidavits filed today,
there is not even a whisper about
payment of interest on illegally withheld
amount deposited by the petitioner.

4. Learned Standing Counsel
submits that since GST is a new regime,
therefore, some direction by the Court for
grant of interest under the facts and
circumstances of the case, is needed.

5. Oral request made by the
respondents through the learned Standing
Counsel, as recorded above, be brought on
record by means of personal affidavit of the
respondent no.1 for consideration by this
Court. The personal affidavit may be filed
on or before the next date fixed.

6. Put up as a fresh case for
further hearing on 27.04.2022 at 10:00 a.m.
alongwith connected writ petition."

 (emphasis supplied)

17. Today, a personal affidavit of the
respondent no.1 dated 25.04.2022 has
been filed in which the respondent no.1
has stated in paragraphs 12 to 21 as
under :-

"12. That on 09.07.2018 the
petitioner gave his letter for refund due to
appellate order but file RFD-01A on
common portal nor did he informed the
proper officer that there was any technical
issue for filing of RFD-01A which is a
mandatory requirement as per Rule 89(1)
and 97A of CGST/UPGST Rules, 2017. For
kind perusal of this Hon'ble Court true copy
of Form RFD-01A is being appended
herewith and marked as Annexure-8 to this
affidavit.

13. That again on 09-12-2020 and
on 21-01-2021 reminder letter was given
by the petitioner before the proper officer
and
in
turn
proper
officer
duly
communicated to the petitioner that he
should file online application in format
(RFD-01) on the common portal but it was
not complied with.

14. That on request of the
petitioner to provide password, the proper
officer suggested him to generate a token
for technical glitches on the common portal
at https:// selfservice.gstsystem.in/, even
after this communication no compliance
was made by petitioner.

15. That the petitioner could have
approached on self help portal which had
started functioning since 22.1.2018 and
also there was a help desk established in
GSTN but there was no averment in the
writ petition that the petitioner ever
approached GST self-help portal for the
technical difficulties faced by him.

16. That due to technical
glitches, the temporary I.D. of the
petitioner was not available at the end of
proper officer's login as it was at
development stage of GST Portal and
hence it was not possible to provide the
5 All. M/s Alok Traders Vs. Commissioner, Commercial Taxes, Lucknow & Ors.
1577
password to the petitioner from the
proper officer's end.

17. That when the entire problem
came into knowledge of the deponent, she
took it up on top priority with GSTN and
after continuous efforts with CEO of
GSTN, it was possible to activate the
temporary I.D. at the login of the proper
officer to provide password

18. That after receiving the
password, the online refund application in
form RFD-01 was filed by the petitioner on
31.03.2022. A true copy of RFD-01 filed by
the petitioner is being appended herewith
and marked as Annexure-9 to this affidavit.

19. That the abovementioned
application RFD-01 was disposed and
refund was sanctioned in Form RFD-06
within the time period specified under
Section 56 of the CGST/UPGST Act,
2017 hence liability to pay interest does
not arise. True copy of the Refund
Sanction Order ic. RFD-06 is being
appended herewith and marked as
Annexure-10 to this affidavit.

20. That as per Section 54 of
CGST/UPGST Act and rules 89 of
CGST/UPGST
Rules
and
circulars
issued by the department, refund can
only be made after the taxpayer file
refund
application
in
form
RFD01/RFD-01A as the case may be and
there was no system of giving suo moto
refund at the officer level under the GST
system.

21. That in view of the aforesaid
facts and circumstances mentioned above,
this Hon'ble Court may be pleased to pass
appropriate orders/direction in the interest
of justice."

 (emphasis supplied)

18. That facts of the case as discussed
above leaves no manner of doubt that the
respondent No.3 mischievously created
temporary I.D. for depositing of the sum of
Rs.4,70,400/- made by the petitioner
pursuant to the order dated 30.12.2017
passed by the respondent No.3 under
Section 129 of the U.P. GST Act, 2017,
even though he was well aware of the fact
that the petitioner is a registered dealer of
Gujrat State and the provisions of IGST Act
are applicable and all details relating to
petitioner were available with him and
there was no need to create a temporary
I.D.. The password of the temporary I.D.
created by the respondent No.3 was never
communicated to the petitioner despite
repeated demands made by him which fact
is further evident from own letters of the
respondents quoted in paragraphs 7 and 9
of this judgment and paragraph-16 of the
personal affidavit of the respondent No.1
dated 25.04.2022 quoted in paragraph 17 of
this judgment. The appellate authority, by
order dated 30.06.2018, not only allowed
the appeal of the petitioner and set aside the
order dated 30.12.2017 passed by the
respondent No.3, but also directed for
refund of the amount/ bank guarantee
deposited by the petitioner. The petitioner
moved the application dated 09.07.2018 for
refund before the respondent No.3 along
with a copy of the order of the appellate
authority. Subsequently, it was followed by
several applications written by him to
various authorities/ respondents. Thus, it
was wholly impossible for the petitioner to
submit online Form RFD-01A for refund
inasmuch as the petitioner was not having
the password of the temporary I.D.
mischievously created by the respondent
No.3 at its own. The respondent No.1
herself has stated in paragraph-16 of her
personal affidavit dated 25.04.2022 that
due to technical glitches, the temporary I.D.
of the petitioner was not available at the
end of proper officer's login as it was at
development stage of GST Portal and hence
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
it was not possible to provide the password
to the petitioner from the proper officer's
end. Thus, facts sufficiently establish that
the petitioner was entitled for refund in
terms of the order for refund passed by the
First Appellate Authority dated 30.06.2018
and he applied for refund on 09.07.2018
but the respondents deliberately did not
refund the amount on one pretext or the
other. There was no fault on the part of the
petitioner asking the respondents to refund
the deposited amount in terms of the order
of the First Appellate Authority dated
30.06.2018. It is only when this court
passed the order dated 28.03.2022, the
respondents
awoke
and
allowed
the
petitioner also to submit Form RFD-01A.
Thus, online RFD-01A filed by the
petitioner as required by the respondents,
relate back to his refund application dated
09.07.2018 whereas the refund has been
sanctioned by the respondents to the
petitioner on 31.03.2022 and it was paid on
04.04.2022 but without interest. The letter
dated 31.03.2022 was procured by the
respondents from the local counsel of the
petitioner at the time of sanctioning of the
refund i.e. on 31.03.2022 which prima facie
amounts
to
interference
in
court
proceedings
by
the
respondents
and
constituting criminal contempt. However,
learned standing counsel much persuaded
us not to refer the matter for criminal
contempt particularly in view of the
unconditional apology tendered by the
respondent No.1.

19. Now the question that remains for
consideration is as to whether under the
facts and circumstances, the petitioner is
entitled for interest on the amount of
Rs.4,70,400/-, was liable to be refunded in
terms of the order of the First Appellate
Authority dated 30.06.2018 but it was
refunded on 04.04.2022.

20. Sections 54 and 56 of the C.G.S.T.
Act and Rule 89 of the C.G.S.T. Rules
provides for refund, which are reproduced
below:

"Section 54. Refund of tax

(1) Any person claiming refund
of any tax and interest, if any, paid on such
tax or 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.

(2) A specialised agency of the
United Nations Organisation or any
Multilateral
Financial
Institution
and
Organisation notified under the United
Nations (Privileges and Immunities) Act,
1947, Consulate or Embassy of foreign
countries or any other person or class of
persons, as notified under section 55,
entitled to a refund of tax paid by it on
inward supplies of goods or services or
both, may make an application for such
refund, in such form and manner as may be
prescribed, before the expiry of six months
from the last day of the quarter in which
such supply was received.

(3) Subject to the provisions of
sub-section (10), a registered person may
claim refund of any unutilised input tax
credit at the end of any tax period:

PROVIDED that no refund of
unutilised input tax credit shall be allowed
in cases other than--

(i) zero rated supplies made
without payment of tax;

(ii)
where
the
credit
has
accumulated on account of rate of tax on
5 All. M/s Alok Traders Vs. Commissioner, Commercial Taxes, Lucknow & Ors.
1579
inputs being higher than the rate of tax on
output supplies (other than nil rated or
fully exempt supplies), except supplies of
goods or services or both as may be
notified
by
the
Government
on
the
recommendations of the Council:

PROVIDED FURTHER that no
refund of unutilised input tax credit shall be
allowed in cases where the goods exported
out of India are subjected to export duty:

PROVIDED ALSO that no refund
of input tax credit shall be allowed, if the
supplier of goods or services or both avails
of drawback in respect of central tax or
claims refund of the integrated tax paid on
such supplies.

(4) The application shall be
accompanied by--

(a) such documentary evidence as
may be prescribed to establish that a refund
is due to the applicant; and

(b) such documentary or other
evidence (including the documents referred
to in section 33) as the applicant may
furnish to establish that the amount of tax
and interest, if any, paid on such tax or any
other amount paid in relation to which such
refund is claimed was collected from, or
paid by, him and the incidence of such tax
and interest had not been passed on to any
other person:

PROVIDED
that
where
the
amount claimed as refund is less than two
lakh rupees, it shall not be necessary for
the applicant to furnish any documentary
and other evidences but he may file a
declaration, based on the documentary or
other
evidences
available
with
him,
certifying that the incidence of such tax
and interest had not been passed on to any
other person.

(5) If, on receipt of any such
application, the proper officer is satisfied
that the whole or part of the amount
claimed as refund is refundable, he may
make an order accordingly and the amount
so determined shall be credited to the Fund
referred to in section 57.

(6)
Notwithstanding
anything
contained in sub-section (5), the proper
officer may, in the case of any claim for
refund on account of zero-rated supply of
goods or services or both made by
registered
persons,
other
than
such
category of registered persons as may be
notified
by
the
Government
on
the
recommendations of the Council, refund on
a provisional basis, ninety per cent. of the
total amount so claimed, excluding the
amount of input tax credit provisionally
accepted, in such manner and subject to
such conditions, limitations and safeguards
as may be prescribed and thereafter make
an order under sub-section (5) for final
settlement of the refund claim after due
verification of documents furnished by the
applicant.

(7) The proper officer shall issue
the order under sub-section (5) within
sixty days from the date of receipt of
application complete in all respects.

(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
exports of goods or services or both or on
inputs or input services used in making
such zero-rated supplies 1"export" and
"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;
1580 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.

(8A)
The
Government
may
disburse the refund of the State tax in such
manner as may be prescribed.

(9) Notwithstanding anything to
the contrary contained in any judgment,
decree, order or direction of the Appellate
Tribunal or any court or in any other
provisions of this Act or the rules made
thereunder or in any other law for the time
being in force, no refund shall be made
except in accordance with the provisions of
sub-section (8).

(10) Where any refund is due
under sub-section (3) to a registered person
who has defaulted in furnishing any return
or who is required to pay any tax, interest
or penalty, which has not been stayed by
any court, Tribunal or Appellate Authority
by the specified date, the proper officer
may--

(a) withhold payment of refund
due until the said person has furnished the
return or paid the tax, interest or penalty,
as the case may be;

(b) deduct from the refund due,
any tax, interest, penalty, fee or any other
amount which the taxable person is liable
to pay but which remains unpaid under this
Act or under the existing law.

Explanation.--For the purposes of
this sub-section, the expression "specified
date" shall mean the last date for filing an
appeal under this Act.

(11) Where an order giving rise to
a refund is the subject matter of an appeal or
further proceedings or where any other
proceedings under this Act is pending and the
Commissioner is of the opinion that grant of
such refund is likely to adversely affect the
revenue in the said appeal or other
proceedings on account of malfeasance or
fraud committed, he may, after giving the
taxable person an opportunity of being heard,
withhold the refund till such time as he may
determine.

(12) Where a refund is withheld
under sub-section (11), the taxable person
shall, notwithstanding anything contained in
section 56, be entitled to interest at such rate
not exceeding six per cent. as may be notified
on the recommendations of the Council, if as
a result of the appeal or further proceedings
he becomes entitled to refund.

(13) Notwithstanding anything to
the contrary contained in this section, the
amount of advance tax deposited by a casual
taxable person or a non-resident taxable
person under sub-section (2) of section 27,
shall not be refunded unless such person has,
in respect of the entire period for which the
certificate of registration granted to him had
remained in force, furnished all the returns
required under section 39.

(14)
Notwithstanding
anything
contained in this section, no refund under
sub-section (5) or sub-section (6) shall be
paid to an applicant, if the amount is less
than one thousand rupees.

Explanation.--For the purposes of
this section,--

(1) "refund" includes refund of
tax paid on zero-rated supplies of goods or
services or both or on inputs or input
services used in making such zero-rated
supplies, or refund of tax on the supply of
goods regarded as deemed exports, or
refund of unutilised input tax credit as
provided under sub-section (3).

(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,
5 All. M/s Alok Traders Vs. Commissioner, Commercial Taxes, Lucknow & Ors.
1581
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--