Madras High Court
Tvl. Priya Woods Craft vs The Commissioner Of Commercial Taxes on 3 April, 2025
W.P.(MD)No.9225 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.04.2025
CORAM:
THE HONOURABLE MR.JUSTICE VIVEK KUMAR SINGH
W.P.(MD)No.9225 of 2025
and
W.M.P.(MD)No.6881 of 2025
Tvl. Priya Woods Craft,
Represented by its Proprietor,
Chidambaram, Meenar, S/o Chidambaram,
15, Amabalpuram First Street,
Karaikudi, Sivagangai District – 630 001. ... Petitioner
-vs-
1.The Commissioner of Commercial Taxes,
O/o. the Principal and Special Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai - 600 005.
2.State Tax Officer – 2,
No.50, Jawahar Street,
Karaikudi,
Sivagangai District – 630 001. ... Respondents
PRAYER:- Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorari, calling for records pertaining to the impugned
proceedings of the second respondent in ASMT-13 in GSTIN.
33ANJPM3606L1ZX / 18-19 for the Tax Period October 2018 - March 2019
dated 26.12.2020 and quash the same.
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W.P.(MD)No.9225 of 2025
For Petitioner : Mr.R.Veeramanikandan
For Respondents : Mr.J.K.Jayaselan
Government Advocate
ORDER
This Writ Petition has been filed seeking to quash the impugned
proceedings of the second respondent in ASMT-13 in GSTIN.
33ANJPM3606L1ZX / 18-19 for the Tax Period October 2018 - March 2019
dated 26.12.2020.
2. With the consent of both sides, this Writ Petition is disposed of, at the
admission stage itself.
3. The case of the petitioner is that he failed to file the monthly returns in
GSTR - 3B for the months from October 2018 to March 2019 within the due date.
Therefore, the second respondent had issued a notice dated 25.09.2020 under
Section 46 of the TNGST Act,2017 directing the petitioner to file the returns for
the months of October 2018 to March 2019, within a period of 15 days.
Thereafter, the second respondent has passed the impugned order on 26.12.2020,
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assessing the petitioner under best of judgment and demanded the tax amount of
Rs.10,00,599/-. As per the amended provision of Section 62(2) of the Goods and
Services Tax Act, 2017 [hereinafter referred to as ''the GST Act''], the time to file
the returns has been extended to 60 days and the said amendment was given effect
from 01.10.2023. The petitioner was unable to file his returns even within the
extended period of 60 days due to his ill-health and filed the returns along with
interest and late fee on 05.02.2021 and 06.02.2021. However, the second
respondent is insisting the petitioner to pay the demand as per the impugned order
dated 26.12.2020. Hence, the petitioner is before this Court.
4. The learned counsel appearing for the petitioner submits that as per
Section 62(2) of the GST Act, if an assessee filed his/her returns within a period
of 60 days from the date on which the assessment order was served to him / her,
the said assessment order passed by the Department will be deemed to be
withdrawn. In the present case, there was a delay in filing the returns due to ill-
health of the petitioner. Hence, the learned counsel for the petitioner prays this
Court to condone the said delay and to quash the impugned assessment order
passed by the second respondent.
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5. In reply, the learned Government Advocate appearing for the
respondents would submit that only if the returns were filed within a period of 60
days from the date on which the best judgment assessment orders was served, the
petitioner is certainly entitled to avail the benefit, which is available under
Section 62(2) of the GST Act. In the present case, the returns were filed by the
petitioner within the prescribed time limit. Hence, the learned Government
Advocate requested this Court to pass appropriate orders.
6. Heard the learned counsel for the petitioner and the learned Government
Advocate for the respondents and also perused the materials available on record.
7. In the present case, the returns were not filed by the petitioner for the
months of October 2018 to March 2019 within the prescribed time limit. Hence,
the impugned order dated 26.12.2020 has been passed by the second respondent
under Section 62(1) of the GST Act. Thereafter, the returns were filed by the
petitioner for the months of October 2018 and November 2018 on 05.02.2021 and
for the months of December 2018 to March 2019 on 06.02.2021.
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8. At this juncture, it would be appropriate to extract Section 62 of the GST
Act, which reads as follows:-
''62. Assessment of non-filers of returns.—
(1) Notwithstanding anything to the contrary contained in section
73 or section 74, where a registered 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
sixty 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.''
9. A reading of the above provision would make it clear that if any
registered person fails to furnish the returns under Section 39 of the Act, a proper
officer may proceed to assess the tax liability of the said person to the best of his
judgment taking into account all the relevant materials, which are available or
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which he has gathered and pass an assessment order, within a period of 5 years
from the date specified under Section 44 of the Act for furnishing of the annual
return for the financial year, in which the tax was not paid.
10. In the present case, since the petitioner had not filed the returns for the
months of October 2018 to March 2019 within the prescribed time limit, the
assessment order has been passed by the second respondent under Section 62(1)
of the GST Act on 26.12.2020.
11. In terms of the provisions of Section 62(2) of the GST Act, if a
registered person furnishes the valid returns within a period of 60 days of the
service of assessment order under sub-section (1) of Section 62 of the GST Act,
the said assessment order would be deemed to have been withdrawn. However,
the liability for payment of interest of sub-section (1) of Section 50 of the GST
Act or for payment of late fee under Section 47 of the GST Act shall continue.
12. The idea of implementation of the said provision is to afford an
opportunity to the registered person to furnish and file the returns within a period
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of 60 days from the date of service of assessment order, which was passed under
Section 62(1) of the GST Act.
13. Now, the issue is, what will be the situation, if the petitioner failed to
furnish the returns within a period of 60 days as prescribed under Section 62(2) of
the GST Act. Whether the petitioner will lose his opportunity to file the returns or
the petitioner will still be entitled to file the returns by providing sufficient
reasons for non-filing of returns, whereby enabling the second respondent to
condone the delay and accept the returns of the petitioner in lieu of amendment in
Section 16(5) of the GST Act.
14. Further, if the registered person was not able to file the returns within a
period of 60 days for the reasons, which are beyond his/her control, the said delay
may be condoned upon providing of sufficient reasons by the said person. Since
Section 62 of the GST Act permits the person to file their returns as stated above,
making the assessment at the earliest point of time and fixing the time limit of 60
days period will curtail the right, which is available for the assessee as per
amendment in Section 16(5) of the GST Act.
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15. In view of the above, the limitation of 60 days period prescribed under
Section 62(2) of the Act appears to be directory in nature and if the assessee was
not able to file the returns for the reasons, which are beyond his/her control,
certainly the said delay can be condoned and thereafter, the assessee can be
permitted to file the returns after payment of interest, penalty and other charges as
applicable. At any cost, the right to file the returns cannot be taken away stating
that the petitioner has not filed any returns within a period of 60 days from the
date of best judgment assessment order. Thus, if any application is filed before the
authority concerned with sufficient reasons for non-filing of returns within the
prescribed time limit as per section 62(2) of the Act, the same shall be considered
on merits. If the authority is satisfied with the said reasons, they can condone the
delay and permit the petitioner to file the returns. However, in the present case, no
such application was filed by the petitioner. Therefore, this Court is inclined to
pass the following orders:-
(i) The petitioner is directed to file an application for condoning the
delay in filing the returns within a period of 15 days from the date of
receipt of copy of this order.
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(ii) Upon filing of the application for condonation of delay, the
second respondent is directed to consider the said application and pass
orders by taking into consideration of the reasons provided by the
petitioner for non-filing of returns within a period of 60 days from the
service of best judgment assessment order and thereafter, permit the
petitioner to file the revised returns.
16. With the above directions, this Writ Petition is disposed of. There shall
be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
NCC : Yes / No 03.04.2025
Index : Yes / No
smn2
To:-
1.The Commissioner of Commercial Taxes,
O/o. the Principal and Special Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai - 600 005.
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2.The State Tax Officer – 2,
No.50, Jawahar Street,
Karaikudi,
Sivagangai District – 630 001.
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VIVEK KUMAR SINGH, J.
smn2
03.04.2025
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