Hash Constructions vs The Deputy Commissioner
2021 Latest Caselaw 3683 Ker

                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

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

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

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

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

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





                           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 15.05.2019.

EXHIBIT P1(f) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR OCTOBER, 2018 DATED 15.05.2019.

EXHIBIT P1(g) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR NOVEMBER , 2018 DATED 15.05.2019.

EXHIBIT P1(h) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR DECEMBER, 2018 DATED 15.05.2019.

EXHIBIT P1(i) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR JANUARY, 2019 DATED 15.05.2019.

EXHIBIT P1(j) A TRUE COPY OF THE ORDER PASSED IN FORM GST ASMT -13 FOR FEBRUARY, 2019 DATED 15.05.2019.

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

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

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.

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. 13700/2016.

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.