Muhammed Basheer v. Union Of INDIA - Kerala High Court, 07 March 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 7TH DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 WP(C) NO. 16343 OF 2021 PETITIONER : MUHAMMED BASHEER, AGED 42 YEARS, S/O. MOIDEENKUTTY, PROPRIETOR, AMPURE TECHNOLOGIES, 2,13/834, MAS TOWER, EDARIKODE, KOTTAKKAL, MALAPPURAM-676501. BY ADVS. K.M.SATHYANATHA MENON P.ARUN KUMAR (MONCOMPU) RESPONDENTS : 1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, NORTH BLOCK, NEW DELHI-110 001. 2 THE COMMISSIONER, OFFICE OF THE COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, C.R. BUILDING, MANANCHIRA, CALICUT-673 001. 3 THE ASSISTANT COMMISSIONER, OFFICE OF THE COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, C.R. BUILDING, MANANCHIRA, CALICUT-673 001. 4 THE DEPUTY COMMISSIONER, OFFICE OF THE DEPUTY COMMISSIONER, STATE GST DEPARTMENT, CIVIL STATION, MALAPPURAM-676 505. BY ADVS. SRI.KRISHNADAS P.NAIR, CGC SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE & CUSTOMS ADV. S. MANU, ASGI ADV.DR. THUSHARA JAMES, SENIOR GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 16343 OF 2021 2 BECHU KURIAN THOMAS, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No.16343 of 2021 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 7th day of March, 2022 JUDGMENT Petitioner seeks for a direction to permit payment of the tax due from the petitioner for the months of February 2021 and March 2021 in 20 equated monthly instalments. Petitioner has also sought for a direction to permit the submission of returns in the subsequent months without initiating any coercive steps.

Petitioner is a dealer registered under the State Goods and Service Tax Act, 2017 (for short, 'the Act'). He claims to have carried out the work of providing water supply to the Anganvadies and schools in various panchayats in Malappuram district under a project of the Kerala Water Authority. Though the works were executed by the petitioner, a substantial portion of the bill remains to be settled and completion certificate has also not been issued by the Kerala Water Authority, citing Covid-19 pandemic. Due to the impact of the pandemic and the consequent failure of the Water Authority to clear the amounts due to the petitioner, he failed to file his returns for the month of February 2021 and March 2021. Petitioner further alleges that due to the financial constraints brought about on account of the pandemic, the returns could not be submitted. In the meantime, petitioner was issued with a notice under

WP(C) NO. 16343 OF 2021 3 section 46 of the Central Goods and Service Tax Act, 2017 (for short, 'the CGST' Act) requiring the petitioner to furnish his returns, failing which, it was proposed to assess him under Section 62 of the Act.

Petitioner contends that due to the financial difficulty faced by the petitioner, he was unable to clear the tax liability for the period February 2021 and March 2021 and seeks the benefit of payment of the tax in 20 instalments. Petitioner relies upon the judgements of this court in W.P.(C) No. 14275 of 2020 and W.P.(C) No. 21490 of 2020, wherein, this court had granted permission to pay the tax liability in instalments.

A statement has been filed by the Standing Counsel for respondents 4 and 5. The said respondents by referring to section 80 of the CGST Act, have pleaded that, since petitioner had carried out self- assessment of the tax due, the payment of tax in instalments cannot be permitted, as it is contrary to the statutory provisions. It was further pointed out that the judgments relied upon by the petitioner were pending consideration in writ appeals. On the above pleadings, the respondents sought for dismissal of the writ petition.

I have heard Sri.K.M.Sathyanatha Menon, the learned counsel for the petitioner, Sri.S.Manu, the learned Assistant Solicitor General of India for the first respondent, Sri.Sreelal N Warrier, the learned Standing Counsel for respondents 2 and 3 and Dr.Thushara James, the learned Senior Government Pleader for the 4th respondent.

On an appreciation of the contentions raised by the parties,

WP(C) NO. 16343 OF 2021 4 it can be noticed that petitioner has no dispute on his liability for payment of tax for the months of February 2021 and March 2021. The financial difficulties faced by the petitioner due to Covid-19 pandemic is claimed to be the reason for seeking the benefit of payment of tax in instalments. Though section 80 of the Act confers power upon the Commissioner to extend the time for payment, the said benefit is limited for payments other than those due under self assessed returns. It is true that as far as the power of the Commissioner is concerned, there is a restriction on the power to grant instalments for payment of tax due. In cases of self- assessed returns, the Commissioner of GST does not have the power to permit payment of tax in instalments.

The decisions in Ext.P4 and P5 are pending consideration in the appeal and the same has not attained finality.

As far as the present case is concerned, petitioner has not paid the tax for the period from February 2021 till date and hence he has already got the benefit of almost 12 months. Though the learned counsel for the respondent relied upon the decision in Asstt. Commr. (CT), LTU, Kakinada v. Glaxo Smith Kline Consumer Health Care Ltd. [2020 (36) G.S.T.L.305 (S.C.)] and contended that no instalment facility can be granted contrary to the statutory provisions, I am of the opinion that the said question need not be considered in the instant case. The petitioner has already got the benefit of almost 12 months and respondents have agreed to accept the entire tax, if paid in full, immediately. In view of the

WP(C) NO. 16343 OF 2021 5 aforesaid, a further grant of instalment is not warranted and the petitioner is bound to clear the liability without fail, immediately.

Accordingly I hold that petitioner is bound to pay the tax for the month of February 2021 onwards, within a period of one month from the date of receipt of a copy of the judgment and if the tax due till date is received within the time directed above, respondents shall accept the same and permit the petitioner to continue his registration under the Act. With the above observations, the writ petition is disposed of. BECHU KURIAN THOMAS JUDGE RKM

WP(C) NO. 16343 OF 2021 6 APPENDIX OF WP(C) 16343/2021 PETITIONER'S EXHIBITS : Exhibit P1OF THE GST REGISTRATION CERTIFICATE OF THE PETITIONER DATED 20/01/2019 ISSUED BY THE GOVERNMENT OF INDIA. Exhibit P2OF THE NOTICE ISSUED UNDER SECTION 46 OF THE CGST ACT TO THE PETITIONER BY THE RESPONDENT DATED 06/04/2021 FOR THE TAX PERIOD FEBRUARY 2021. Exhibit P3OF THE NOTICE ISSUED UNDER SECTION 46 OF THE CGST ACT TO THE PETITIONER BY THE RESPONDENT DATED 04/07/2021 FOR THE TAX PERIOD MARCH, 2021. Exhibit P4OF THE JUDGMENT DATED 24/07/2020 IN WPC NO.14275/2020 ON THE FILES OF THIS HONOURABLE COURT. Exhibit P5OF THE JUDGMENT DATED 12/10/2020 IN WPC NO.21490/2020 OF THE FILES OF THIS HON'BLE COURT. Exhibit P6OF THE SCREENSHOT OF THE WEBPAGE OF GOODS AND SERVICES TAX PERTAINING TO PETITIONER ACCOUNT GSTIN 32CNOPM8737R1ZY Exhibit P7OF THE RELEVANT PAGES OF FROM GSTR-1 FOR THE MONTH OF JUNE 2021 Exhibit P7AOF THE RELEVANT PAGES OF FROM GSTR-1 FOR THE MONTH OF JULY 2021