Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.M.BADAR TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942 WP(C).No.671 OF 2021(H) PETITIONER/S: HASH CONSTRUCTIONS, 22/31F, GH, MANGATTUKAVALA, THODUPUZHA EAST, IDUKKI - 685585, REPRESENTED BY ITS PROPRIETOR SRI.E.S. SUBAIR. BY ADVS. SRI.AJI V.DEV SRI.ALAN PRIYADARSHI DEV RESPONDENT/S: 1 THE DEPUTY COMMISSIONER (FORMERLY ASSISTANT COMMISSIONER) STATE GOODS AND SERVICE TAX DEPARTMENT, SPECIAL CIRCLE, MINI CIVIL STATION, THODUPUZHA - 685608. 2 THE JOINT COMMISSIONER (APPEALS) STATE GOODS AND SERVICES TAX DEPARTMENT, SGST COMPLEX, THEVARA, PERUMANOOR P.O, ERNAKULAM - 682015. 3 THE COMMISSIONER OF STATE TAXES, TAX TOWER, KILLIPPALAM, KARAMANA P.O, THIRUVANANTHAPURAM - 695002.
SMT THUSHARA JAMES - GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.671 OF 2021 2
JUDGMENT
Dated this the 2nd day of February 2021 Heard both sides.
2. By this writ petition, the petitioner is challenging the
appellate order (Ext.P7) passed by the Joint Commissioner (Appeals) under the Central Goods and Services Tax Act ('the CGST Act' for brevity), thereby rejecting the appeals filed by the petitioner being barred by limitation, apart from non-deposit of 1% of the court fees as per the KLBF .
3. Learned Counsel appearing for the petitioner submitted
that the petitioner could not file monthly returns prescribed under the GST Act for the period April 2018 to May 2019. Therefore, the 1st respondent, being the Assessing Officer, has passed several orders under Section 62 of the GST Act in respect of the said period. The petitioner has annexed those orders in FORM GST ASMT-13 dated 15.05.2019 and 14.07.2019 at Exts.P1 to P1(m) with this writ petition.
4. Learned counsel appearing for the petitioner submitted
that subsequent to passing the orders to the best of his judgment
by the Assessing Officer, orders in FORM GST DRC-07 [Exts.P2 to P2(m)] dated 22.10.2019, 27.11.2019 and 30.11.2019 came to be WP(C).No.671 OF 2021 3 issued by the 1st respondent. The petitioner preferred statutory appeal under section 107 of the GST Act. The petitioner has annexed copies of memo of appeals at Ext.P4 to P4(m) with this petition.
5. Learned counsel appearing for the petitioner submitted
that in fact, the orders at Exts.P1 to P1(m) passed under Section 62 of the CGST Act 2017 are not appealable orders and the appellate order is in fact the order in FORM GST DRC-07, which is the final order. For this purpose, the learned counsel appearing for the petitioner drew my attention to the order at Ext.P1 and submitted that this order itself makes it clear that if the return is filed within 30 days from the service of the order, then the order is deemed to have been withdrawn. By drawing my attention to the chart (Ext.P8) filed by the petitioner, the learned counsel for the petitioner argued that if the appeals are construed as appeals filed challenging the order in FORM GST DRC-07 [Exts.P2 to P2(m)], then but for one appeal, other appeals filed by the petitioner are within limitation and that one appeal also suffers from condonable
delay. With this, learned counsel appearing for the petitioner submitted that the Appellate Authority erred in rejecting his appeal mainly on the ground that those appeals are suffering from WP(C).No.671 OF 2021 4 uncondonable delay apart from the fact that the petitioner has not paid additional court fees at 1% of the disputed amount.
6. Learned Government Pleader drew my attention to the
provisions of Section 62 of the GST Act and submitted that only in case, in response to notice in FORM GST ASMT-13, the assessee files the return, then only the assessment order is deemed to have been withdrawn. In the case in hand, no such returns are filed and therefore, what is appealable is the assessment order in GST ASMT- 13 and not the recovery proceedings in FORM GST DRC-07.
7. I have considered the submissions so advanced and perused the materials placed before me.
8. Section 107 of CGST Act 2017 deals with appeals to
Appellate Authority. Any person aggrieved by any decision or order
passed under this Act can prefer an appeal to the designated appellate authority, within three months from the date on which such decision or order is communicated to him. The Appellate Authority, by virtue of Sub Section (4) of Section 107 of the Act is empowered to condone further delay of one month causing filing appeal provided sufficient cause for not presenting the appeal within the prescribed period of limitation is demonstrated. Thus, after further period of one month, the delay in preferring the appeal WP(C).No.671 OF 2021 5 is not condonable.
9. In the backdrop of this legal provision let me put on record provisions of Section 62 of the CGST Act2017, which reads thus:- ''62. Assessment of non-filers of returns-
(1) Notwithstanding anything to the contrary contained
in section 73 or section 74, where a registered taxable person fails to furnish the return under Section 39 or Section 45, even after the service of a notice under Section 46, the proper officer may proceed to assess the tax liability of the said person to the best of his judgement taking into account all the relevant material which is available or which he has gathered and issue an assessment order within a period of five years from the date specified under Section 44 for furnishing of the annual return for the financial year to which the tax not paid relates.
(2) Where the registered person furnishes a valid return within thirty days of the service of the assessment
order under sub-Section (1), the said assessment order shall
be deemed to have been withdrawn but the liability for payment of interest under sub-section (1) of section 50 or for payment of late fee under section 47 shall continue.
(3) This clause provides procedure of assessment of
persons who have not filed returns by the due dates. This clause provides that the proper officer may proceed to assess the tax liability of the non-filer to the best of his judgment.''
10. Bare perusal of this provision of CGST Act makes it clear that after making the assessment on the criteria best of the
judgment by the Assessing Officer, a notice is required to be issued
WP(C).No.671 OF 2021 6 to the assessee along with the assessment order. The assessee is granted an opportunity of filing his returns. If such registered person furnishes valid returns in response to the best of the
judgment assessment, then such assessment order is deemed to
have been withdrawn. In the case in hand, despite receipt of assessment order under Section 62 of the Act, the petitioner registered person has not filed any valid return within 30 days from the receipt of the assessment order. This ultimately has resulted in issuance of demand notice in FORM GST DRC-07, mentioning the amount due and payable by the petitioner.
11. The appeal as it stands is an appeal challenging the assessment made by the Assessing Officer to the best of his
judgment as per the provisions of Section 62 of the GST Act. That
assessment order is not deemed to have been withdrawn due to non-filing of valid return within 30 days of service of the assessment order under Section 62 of the Act. As such, it cannot be said that the appeals filed by the petitioner were in fact the appeals challenging the demand notice in FORM GST DRC-07. EVen during pendency of this appeals (Ext.P4), no amendment application was moved to delete the challenge so far as the Assessment Officer in order in FORM GST ASMT-13 is concerned or WP(C).No.671 OF 2021 7 to incorporate the challenge to the orders in FORM GST DRC-07.
12. Undisputeldy, the appeals [Ext.P4(series)] were filed on
10.03.2020 and as such, those were filed after they suffered uncondonabe delay of more than four months. In this view of the matter, no fault can be filed in the impugned order rejecting the appeals as those suffered uncnondonable delay. The petition as such is devoid of merits and accordingly dismissed.
Sd/- A.M.BADAR ajt JUDGE WP(C).No.671 OF 2021 8 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR APRIL, 2018 DATED 15.05.2019. EXHIBIT P1(a) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR MAY, 2018 DATED 15.05.2019. EXHIBIT P1(b) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR JUNE, 2018 DATED 15.05.2019. EXHIBIT P1(c) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR JULY , 2018 DATED 15.05.2019. EXHIBIT P1(d) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR AUGUST, 2018 DATED 15.05.2019. EXHIBIT P1(e) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR SEPTEMBER, 2018 DATED EXHIBIT P1(f) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR OCTOBER, 2018 DATED EXHIBIT P1(g) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR NOVEMBER , 2018 DATED EXHIBIT P1(h) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR DECEMBER, 2018 DATED EXHIBIT P1(i) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR JANUARY, 2019 DATED EXHIBIT P1(j) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR FEBRUARY, 2019 DATED EXHIBIT P1(k) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR MARCH, 2019 DATED 14.07.2019. EXHIBIT P1(l) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR APRIL, 2019 DATED 14.07.2019. EXHIBIT P1(m) A TRUE COPY OF THE ORDER PASSED IN FORM GST WP(C).No.671 OF 2021 9 ASMT -13 FOR MAY, 2019 DATED 14.07.2019. EXHIBIT P2 A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC -07 FOR APRIL, 2018 DATED 22.10.2019. EXHIBIT P2(a) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR MAY,2018 DATED 27.11.2019. EXHIBIT P2(b) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR JUNE, 2018 DATED 27.11.2019 EXHIBIT P2(c) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR JULY, 2018 DATED 27.11.2019 EXHIBIT P2(d) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR AUGUST, 2018 DATED 27.11.2019 EXHIBIT P2(e) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR SEPTEMBER, 2018 DATED 27.11.2019 EXHIBIT P2(f) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR OCTOBER, 2018 DATED 27.11.2019 EXHIBIT P2(g) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR NOVEMBER, 2018 DATED 27.11.2019 EXHIBIT P2(h) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR DECEMBER, 2018 DATED 27.11.2019 EXHIBIT P2(i) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR JANUARY, 2019 DATED 27.11.2019 EXHIBIT P2(j) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR FEBRUARY, 2019 DATED 27.11.2019 EXHIBIT P2(k) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR MARCH, 2019 DATED 30.11.2019 EXHIBIT P2(l) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR APRIL, 2019 DATED 30.11.2019 EXHIBIT P2(m) A TRUE COPY OF THE ORDER PASSED IN FORM GST DRC 07 FOR MAY, 2019 DATED 30.11.2019 EXHIBIT P3 A TRUE COPY OF THE MONTHLY RETURN FILED FOR APRIL 2018. EXHIBIT P3(a) A TRUE COPY OF THE MONTHLY RETURN FILED FOR MAY 2018. EXHIBIT P4 A TRUE COPY OF THE APPEAL FILED FOR APRIL, 2018 DATED 10.03.2020 WP(C).No.671 OF 2021 10 EXHIBIT P4(a) A TRUE COPY OF THE APPEAL FILED FOR MAY, 2018 DATED 10.03.2020. EXHIBIT P4(b) A TRUE COPY OF THE APPEAL FILED FOR JUNE, 2018 DATED 10.03.2020. EXHIBIT P4(c) A TRUE COPY OF THE APPEAL FILED FOR JULY, 2018 DATED 10.03.2020. EXHIBIT P4(d) A TRUE COPY OF THE APPEAL FILED FOR AUGUST, 2018 DATED 10.03.2020. EXHIBIT P4(e) A TRUE COPY OF THE APPEAL FILED FOR SEPTEMBER, 2018 DATED 10.03.2020. EXHIBIT P4(f) A TRUE COPY OF THE APPEAL FILED FOR OCTOBER, 2018 DATED 10.03.2020. EXHIBIT P4(g) A TRUE COPY OF THE APPEAL FILED FOR NOVEMBER, 2018 DATED 10.03.2020. EXHIBIT P4(h) A TRUE COPY OF THE APPEAL FILED FOR DECEMBER., 2018 DATED 10.03.2020. EXHIBIT P4(i) A TRUE COPY OF THE APPEAL FILED FOR JANUARY, 2019 DATED 10.03.2020. EXHIBIT P4(j) A TRUE COPY OF THE APPEAL FILED FOR FEBRUARY, 2019 DATED 10.03.2020. EXHIBIT P4(k) A TRUE COPY OF THE APPEAL FILED FOR MARCH, 2019 DATED 10.03.2020. EXHIBIT P4(l) A TRUE COPY OF THE APPEAL FILED FOR APRIL, 2019 DATED 10.03.2020. EXHIBIT P4(m) A TRUE COPY OF THE APPEAL FILED FOR MAY, 2019 DATED 10.03.2020. EXHIBIT P5 A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT RELATING TO THE APPEAL FILED FOR APRIL, 2018 DATED 20.08.2020 EXHIBIT P6 A TRUE COPY OF THE REPLY FILED BY THE PETITIONER RELATING TO THE APPEAL FOR APRIL, 2018 DATED 28.09.2020. EXHIBIT P7 A TRUE COPY OF THE APPELLATE ORDER (COMMON
ORDER PASSED FOR 14 APPEALS), PASSED DATED
31.10.2020. WP(C).No.671 OF 2021 11 EXHIBIT P8 A COMPUTATION SHEET SHOWING THE ACTUAL CALCULATION OF DELAY IN FILING EXT.P4 SERIES OF APPEALS. EXHIBIT P9 A TRUE COPY OF ORDER PASSED BY THE HON'BLE APEX COURT IN WRIT PETITION NO.03.2020 DATED 23.03.2020. EXHIBIT P10 A TRUE COPY OF THE JUDGMENT IN V.M.MOHAMMED VS. ASST.COMMISSIONER AND ORS IN WP(C) NO. EXHIBIT P11 A TRUE COPY OF THE JUDGMENT IN J AND A FOUNDATIONS (P)LTD VS. DEPUTY COMMISSIONER (APPEALS) AND ANR IN WP(C) NO.21161/2016.