M/S Pragathi Concretes And Construction vs. The Commissioner Of Commercial Taxes

It must be noticed that for the periods referred to above i.e., for the periods of March 2023, April 2023, June 2023 and July 2023, adjudication orders have been passed on the premise that the petitioner had not filed returns. The said orders were passed under Section 62 of the Central Goods and Services Tax Act, 2017 (for short 'the GST Act'). It is further submitted by the learned counsel for the petitioner that returns were filed belatedly for the periods March 2023, April 2023, June 2023 and July 2023 as per the following:

It is submitted that the belated returns may be taken note of and the adjudication orders set aside while HC-KAR NC: 2026:KHC:2234 directing the authorities to proceed with adjudication on the basis of the returns filed.

Learned High Court Government Pleader appearing for the revenue would submit that the orders of adjudication that were passed were with a condition that if returns were filed within 30 days of the order passed under Section 62 of the GST Act, the orders would stand withdrawn. It is submitted that no returns for the said period were filed within 30 days of the order of adjudication and accordingly, the relief sought for by the petitioner cannot be considered.

Section 62 of the GST Act reads as follows:

Assessment of non-filers of returns.- (1) Notwithstanding anything to the contrary contained in section 73 or section 74 3[or section 74A], 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 HC-KAR NC: 2026:KHC:2234 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 1[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of the service of the assessment order under sub-section (1), the said assessment order shall be deemed to have been withdrawn but the liability for payment of interest under sub-section (1) of section 50 or for payment of late fee under section 47 shall continue. Provided that where the registered person fails to furnish a valid return within sixty days of the service of the assessment order under sub- section (1), he may furnish the same within a further period of sixty days on payment of an additional late fee of one hundred rupees for each day of delay beyond sixty days of the service of the said assessment order and in case he furnishes valid return within such extended period, the said assessment order shall be deemed to have been withdrawn, but the liability to pay HC-KAR NC: 2026:KHC:2234 interest under sub-section (1) of section 50 or to pay late fee under section 47 shall continue."

It is not in dispute that the order of adjudication for the period of March 2023, April 2023, June 2023 and July, 2023 has been passed with liberty to the petitioner to file returns within 30 days. It is to be noticed that the orders of adjudication are passed under Section 62 of the GST Act.

Learned counsel for the petitioner submits that the delay was due to bonafide reasons and the Court may take note of the same and pass appropriate orders considering the substantive rights involved, as well as taking note that the adjudication orders passed under Section 62 are on the basis of turnover of the previous 6 months.

Taking note of the purport of Section 62 of the GST Act and the adjudication order passed are not on the basis of returns filed, it would be appropriate to afford the HC-KAR NC: 2026:KHC:2234 petitioner another chance by directing that the returns of the petitioner filed though belatedly may be taken on record reserving liberty to the authorities to take note of the returns filed and proceed to adjudicate the same in terms of Sections 73 or 74 of the GST Act as the case may be, in accordance with law. All contentions of the petitioner are kept open. In light of the lapse of the petitioner of having filed the returns belatedly, petitioners to pay cost of Rs.25,000/- to the High Court Legal Services Authority.

Accordingly, the adjudication orders at Annexures-C, C1, D, D1, E, E1, F and F1 are set aside with a further direction that on the basis of returns filed though belatedly for the respective periods, respondent - Authorities to proceed for adjudication as per law. The said orders of adjudication would have the legal effect of orders being withdrawn in terms of proviso to Section 62 of the GST Act. HC-KAR NC: 2026:KHC:2234

Accordingly, the petition is disposed of. All contentions are kept open. (S SUNIL DUTT YADAV) JUDGE