2025(02)LCX0368
Tvl Hi Version
Versus
The Commissioner of Commercial Taxes
W.P.(MD)Nos. 4026 of 2025 decided on 17-02-2025
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.
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.
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.
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.
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 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.
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 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 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 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 shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.
17.02.2025
NCC : Yes / No
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.
VIVEK KUMAR SINGH , J.
W.P.(MD)Nos.4026 and 4027 of 2025
17.02.2025