Madras High Court
Tvl. Hi Version vs The Commissioner Of Commercial Taxes on 17 February, 2025
W.P.(MD)Nos.4026 and 4027 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE VIVEK KUMAR SINGH
W.P.(MD)Nos.4026 and 4027 of 2025
and
W.M.P.(MD)Nos.2895 and 2914 of 2025
Tvl. Hi Version,
Rep. by its Partner Sundarapandiyammal,
C/o.Ramesh,
Door No.48, Room No.30,
G.R. Rest House,
Gopala Kothan Street,
Madurai - 625 001. ... Petitioner in both the W.Ps.
-vs-
1.The Commissioner of Commercial Taxes,
O/o. the Principal and Special Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai - 600 005.
2.Deputy State Tax Officer – 1,
Nethaji Road Circle, Dr.Thangaraj Salai,
Madurai - 625 020. ... Respondents in both W.Ps.
PRAYER IN W.P.(MD)No.4026 of 2025:- 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
Reference No.33AAMFH8606F1ZE/Tax Period February 2023, dated 19.04.2023
and quash the same.
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W.P.(MD)Nos.4026 and 4027 of 2025
PRAYER IN W.P.(MD)No.4027 of 2025:- 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
Reference No.33AAMFH8606F1ZE/Tax Period April 2023, dated 28.06.2023
and quash the same.
For Petitioner in both the W.Ps. : Mr.R.Veeramanikandan
For Respondent in both the W.Ps. : Mr.J.K.Jayaselan
Government Advocate
COMMON ORDER
These Writ Petitions have been filed seeking to quash the impugned
proceedings of the second respondent in ASMT-13 in Reference No.
33AAMFH8606F1ZE/Tax Period February 2023, dated 19.04.2023 and in
ASMT-13 in Reference No.33AAMFH8606F1ZE/Tax Period April 2023, dated
28.06.2023, respectively.
2. With the consent of both sides, these Writ Petitions are disposed of, at
the admission stage itself.
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W.P.(MD)Nos.4026 and 4027 of 2025
3. The case of the petitioner is that she failed to file the monthly returns in
GSTR - 3B for the months of February 2023 and April 2023 within the due date.
Therefore, the second respondent had issued notices dated 25.03.2023 and
26.05.2023 under Section 46 of the TNGST Act,2017 directing the petitioner to
file the returns for the month of February 2023 and April 2023, within a period of
15 days. Thereafter, the second respondent has the passed orders on 19.04.2023
and 28.06.2023, assessing the petitioner under best of judgment and demanded
the tax amount of Rs.2,87,884/- and Rs.2,87,884/-. 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 her returns even within the extended period of 60 days due to her ill-health
and filed the returns along with interest and late fee on 04.01.2024 and
09.01.2024. However, the second respondent is insisting the petitioner to pay the
demand as per the orders dated 19.04.2023 and 28.06.2023. Hence, the petitioner
is before this Court.
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W.P.(MD)Nos.4026 and 4027 of 2025
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 orders
passed by the second respondent.
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 judgement assessment orders were served,
the petitioner is certainly entitled to avail the benefit, which is available under
Section 62(2) of the GST Act. However, in the present case, the returns were not
filed by the petitioner within the prescribed time limit. Hence, the learned
Government Advocate requested this Court to pass appropriate orders.
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W.P.(MD)Nos.4026 and 4027 of 2025
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 cases, the returns were not filed by the petitioner for the
months of February 2023 and April 2023 within the prescribed time limit. Hence,
the impugned orders dated 19.04.2023 and 28.06.2023 have been passed by the
second respondent under Section 62(1) of the GST Act. Thereafter, the returns
were filed by the petitioner for the month of February 2023 on 04.01.2024 and for
the month of April 2023 on 09.01.2024.
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
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W.P.(MD)Nos.4026 and 4027 of 2025
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
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 cases, since the petitioner had not filed the returns for the
months of February 2023 and April 2023 within the prescribed time limit, the
assessment orders have been passed by the second respondent under Section
62(1) of the GST Act on 19.04.2023 and 28.06.2023.
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W.P.(MD)Nos.4026 and 4027 of 2025
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
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 her 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
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W.P.(MD)Nos.4026 and 4027 of 2025
condone the delay and accept the returns of the petitioner.
14. Further, the second respondent can make the best judgment assessment
order within a period of 5 years from the end of financial year, for which the
registered person is liable to file the annual returns. In the present cases, the
relevant financial year is pertaining to 31.03.2023, in which case, the petitioner is
liable to file the annual returns on or before 31.12.2023. Therefore, the said
period of 5 years to make the best judgment assessment order for the second
respondent will start on 01.01.2024 and ends on 31.12.2029. In such case, if the
best judgement assessment order is passed by the second respondent on
31.12.2029, which is permissible under Section 74 of the GST Act, the petitioner
can file his returns within a period of 60 days therefrom i.e., on or before
30.01.2030. Hence, the time limit is available up to 30.01.2030 for the petitioner
to file her returns. When such being the case, since the best judgment assessment
order has been made by the second respondent at the earliest point of time, the
legal right of the petitioner to file the returns, which is available under Section 62
of the Act, cannot be taken away. If the best judgment assessment order has not
been passed on the earlier date, the petitioner can file her returns even without
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W.P.(MD)Nos.4026 and 4027 of 2025
paying any interest or penalty.
15. 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.
16. 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
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W.P.(MD)Nos.4026 and 4027 of 2025
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 cases,
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.
(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.
17. With the above directions, these Writ Petitions are disposed of. There
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W.P.(MD)Nos.4026 and 4027 of 2025
shall be no order as to costs. Consequently, connected Miscellaneous Petitions are
closed.
NCC : Yes / No 17.02.2025
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.
2.The Deputy State Tax Officer – 1,
Nethaji Road Circle, Dr.Thangaraj Salai,
Madurai - 625 020.
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W.P.(MD)Nos.4026 and 4027 of 2025
VIVEK KUMAR SINGH, J.
smn2
Common order
W.P.(MD)Nos.4026 and 4027 of 2025
17.02.2025
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