Tvl. Hi Version vs. The Commissioner Of Commercial Taxes

With the consent of both sides, these Writ Petitions are disposed of, at the admission stage itself. ____________ https://www.mhc.tn.gov.in/judis

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. ____________ https://www.mhc.tn.gov.in/judis

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the assessment order was served to him / her, the said assessment order passed by the Department will be deemed to be withdrawn.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.

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. ____________ https://www.mhc.tn.gov.in/judis

Heard the learned counsel for the petitioner and the learned Government Advocate for the respondents and also perused the materials available on record.

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:- ''

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 ____________ https://www.mhc.tn.gov.in/judis

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.

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. ____________ https://www.mhc.tn.gov.in/judis

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.

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.

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 ____________ https://www.mhc.tn.gov.in/judis

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 ____________ https://www.mhc.tn.gov.in/judis

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.

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 ____________ https://www.mhc.tn.gov.in/judis

With the above directions, these Writ Petitions are disposed of. There ____________ https://www.mhc.tn.gov.in/judis

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. ____________ https://www.mhc.tn.gov.in/judis