IN HIGH COURT OF DELHI AT NEW DELHI W.P. (C) 7037/2020 & CM APPL. 23996/2020 GULSHAN KAPOOR ..... Petitioner Through: Mr. Shivashish Karnani, Advocate with Mr. Arbind Aggarwal, Mr. Prashant and Mr. Akshay Kumar, Advocates. versus COMMISSIONER OF DELHI GOODS AND SERVICES TAX & ORS. ...... Respondents Through: Mr. Prateek K. Chadha, Advocate for respondent Nos.1, 3 & 4. Mr. Amit Bansal, Senior Standing Counsel with Mr. Aman Rewaria and Ms. Vipasha Mishra, Advocates for respondent No.2. % Date of Decision: 30th September, 2020 CORAM: HON'BLE MR. JUSTICE MANMOHAN HON'BLE MR. JUSTICE SANJEEV NARULA JUDGMENT MANMOHAN, J: (Oral) 1. petition has been heard by way of video conferencing. 2. Present writ petition has been filed challenging impugned Deficiency Memo dated 15th July, 2020 issued by respondent no. 4 for period July 2018 to September 2018 as well as impugned Show Cause Notice dated 15th July, 2020 issued by respondent no. 3 qua refund application for period October 2018 to December 2018 and impugned Refund Sanction Order W.P.(C) No. 7037 of 2020 Page 1 of 4 dated 3rd September, 2020 issued by respondent no. 3 for period January 2019 to March 2019 by crediting refund claimed to consumer welfare fund instead of petitioner. Petitioner also prays for directions to respondents to grant refund of Input Tax Credit to petitioner for all three refund periods along with interest. 3. Learned counsel for petitioner states that despite all documents being available in records of respondents, they are asking for them to be furnished once again. He contends that notice can be issued where proper officer is satisfied for reasons to be recorded in writing that whole or any part of refund is not admissible. However, he states that in present case no precise reason of satisfaction for inadmissibility of refund is recorded and it is unclear why there is requirement for petitioner to appear in person when additional clarifications can be furnished electronically. 4. He submits that impugned Deficiency Memo and Show Cause Notice are ex-facie nullity since reliance for their issuance is placed on Circular no. 125/44/2019-GST dated 18th November, 2019 issued in exercise of powers conferred by Section 168 of Act, as per which Circular can be issued to clarify provisions of Act and Rules but same cannot place additional requirements for compliance. 5. He further submits that in present case impugned Deficiency Memo was issued after period of around 90 days, whereas under Sub-rule 2 and 3 of Rule 90 deficiency memo needs to be issued within mandatory period of 15 days. In support of his submission, he relies upon judgment of this Court in Jian International Vs. Commissioner of Delhi Goods and Services Tax, W.P. (C) 4205/2020. W.P.(C) No. 7037 of 2020 Page 2 of 4 6. He contends that as per clause (b) of Section 54(8) of CGST Act, 2017 where refund is claimed on account of inverted duty structure, refundable amount instead of being credited to consumer welfare fund has to be paid to applicant. 7. Issue notice. 8. Mr. Prateek K. Chadha, Advocate accepts notice on behalf of respondent Nos.1, 3 & 4 and Mr. Amit Bansal, Senior Standing Counsel accepts notice on behalf of respondent no.2. 9. Since in present case quashing of Circular dated 18th November, 2019 is not sought but only interpretation has been placed upon it and reliance on Jian International (supra) can be placed before respondents, this Court directs petitioner to take all its pleas in replies to show cause notice, deficiency memo and representation seeking credit of refund in his account. 10. At this stage, learned counsel for respondent nos. 1, 3 and 4 states that reply to show cause notice, deficiency memo and representation shall be decided expeditiously after giving opportunity of hearing to authorized representative of petitioner by way of reasoned order in accordance with law. He further states that petitioner need not appear personally before respondent. 11. statement made by learned counsel for respondent nos. 1, 3 and 4 is accepted by this Court and said respondents are held bound same. 12. Recording aforesaid statement, present writ petition and pending application stand disposed of with aforesaid directions. Though it is clarified that all rights and contentions of parties are left open, yet it is directed that replies and representations filed by petitioner shall not W.P.(C) No. 7037 of 2020 Page 3 of 4 be rejected/dismissed on ground of limitation. 13. order be uploaded on website forthwith. Copy of order be also forwarded to learned counsel through e-mail. MANMOHAN, J SANJEEV NARULA, J SEPTEMBER 30, 2020 as W.P.(C) No. 7037 of 2020 Page 4 of 4 Gulshan Kapoor v. Commissioner of Delhi Goods and Services Tax & Or