Tvl.Sree Garuda Global Service vs. The Assistant Commissioner
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The petitioner, Tvl.Sree Garuda Global Service, filed five writ petitions challenging orders passed by the Assistant Commissioner, Sivagangai Assessment Circle. The impugned orders, in Form GST ASMT-13, were issued for tax periods April 2023 to September 2023. The petitioner contended that the assessment orders were not served on them, leading to a violation of natural justice. The respondent argued that the orders were uploaded on the GST common portal, which constitutes valid service under Section 169(1)(d) of the TNGST Act, 2017. The petitioner claimed to have paid the entire tax due as per GSTR-3B returns and sought an opportunity to present their objections, offering to deposit 25% of the disputed tax. For the September 2023 period, the petitioner highlighted an amendment extending the return filing time limit.
Held
The Court held that for the tax periods April to July 2023 (W.P.(MD)Nos.18870 to 18873 of 2024), while the petitioner failed to file returns within the prescribed period and subsequently did not avail the opportunity to file returns within 30 days of receiving the ASMT-13 orders, the Court, considering the petitioner's claim of having paid the entire tax and their willingness to deposit 25% of the differential tax, granted one opportunity. The petitioner was directed to deposit 25% of the differential tax within two weeks, after which the assessing officer was to redo the assessment after hearing the petitioner. For the tax period September 2023 (W.P.(MD)No.18874 of 2024), the Court found merit in the petitioner's submission that the extended time limit for furnishing returns, as per Notification No. 28/2023-Central Tax and Section 148(b) of the Finance Act, 2023, was not considered by the Assessing Officer. The impugned order for this period was set aside, and the Assessing Officer was directed to consider the impact of the amendment and pass fresh orders on merits. The ratio is that principles of natural justice and statutory amendments should be considered, and in certain circumstances, a one-time opportunity can be granted upon deposit of a portion of the disputed tax.
Key Issues
1. Whether the impugned assessment orders, issued under Section 62 of the TNGST Act, 2017, are liable to be quashed for violation of the principles of natural justice due to non-service on the petitioner? (Mixed question of law and fact) 2. Whether the uploading of orders on the GST common portal constitutes valid service under Section 169(1)(d) of the TNGST Act, 2017? (Question of law) 3. Whether the petitioner is entitled to an opportunity to present their objections and deposit 25% of the disputed tax, considering their claim of having paid the entire tax due and their inability to file appeals due to alleged non-service? (Mixed question of law and fact) 4. Whether the extended time limit for furnishing returns, as per Notification No. 28/2023-Central Tax and Section 148(b) of the Finance Act, 2023, is applicable to the assessment order for September 2023? (Question of law) Petitioner's arguments: The assessment orders were not served, violating natural justice. They have paid the entire tax due. They are willing to deposit 25% of the disputed tax and seek an opportunity to be heard. They also rely on a previous High Court order in similar circumstances. For September 2023, the extended time limit for filing returns was not considered. Respondent's arguments: Orders were uploaded on the GST common portal, which is a valid mode of service under Section 169(1)(d).
Sections Cited
Section 62, Section 169(1)(d), Section 148(b)
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Before: and
By this common order, these five Writ Petitions are taken up for disposal. 2/8 https://www.mhc.tn.gov.in/judis
W.P.(MD) Nos.18870 to 18874 of 2024
The Writ Petitions in W.P.(MD)Nos.18870 to 18873 of 2024 are filed challenging the impugned orders made under Section 62 of the TNGST Act, 2017, on the premise that the petitioner has failed to furnish the Return for the period from April to July 2023 within the prescribed period. The impugned orders made under Section 62 also provided that if the petitioner files the Return within a period of 30 days from the date of receipt of that order, the impugned orders would be withdrawn. However, admittedly, the petitioner has not done so within the prescribed period, i.e., 30 days from the date of receipt of that order as it is evident from the following table: S.No W.P.(MD)Nos. Months Date of impugned order in ASMT-13 Date of speaking order GSTR-3B returns filed on GSTR-3B returns filed with delay of 1. 18870/2024 April-23 20.06.2023 20.06.2023 18.12.2023 151 days 2. 18871/2024 May-23 22.09.2023 22.09.2023 16.03.2024 146 days 3. 18872/2024 June-23 03.10.2023 22.09.2023 16.03.2023 45 days 4. 18873/2024 July-23 03.10.2023 22.09.2023 16.03.2023 45 days
It is submitted by the learned counsel for the petitioner that the assessment orders were not served on the petitioner. 3/8 https://www.mhc.tn.gov.in/judis
W.P.(MD) Nos.18870 to 18874 of 2024
Opposing the same, the learned Additional Government Pleader for the respondent submits that the impugned orders were uploaded in the GST common portal, which is one of the modes of service, as contemplated under Section 169(1)(d) of the TNGST Act, 2017, which reads as under: “169.Service of notice in certain circumstances: (1) Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:— ...... (d) by making it available on the common portal;”
It is submitted by the learned counsel for the petitioner that the petitioner had paid entire tax. In view of the fact that the petitioner has not responded to the respective notices that preceded the respective impugned orders, the respondent has proceeded to make Best of Judgement Order on the basis of the total turn over and Return in GSTR 01 for the month of April 2023 by adding 10% towards gross profit. 4/8 https://www.mhc.tn.gov.in/judis
W.P.(MD) Nos.18870 to 18874 of 2024
It is submitted by the learned counsel for the petitioner that entire tax due in terms of the Return filed in GSTR 3B has already been remitted, which demonstrates their bonafides and they were unable to file the appeal within the prescribed statutory period only in view of the fact that they were unaware of the order being uploaded in the GST portal. The learned counsel would then refer to the order of this Court in the case of M/s.K.Balakrishnan, Balu Cables vs. O/o. the Assistant Commissioner of GST & Central Excise in W.P.(MD)No.11924 of 2024 dated 10.06.2024 and submit that the petitioner is ready and willing to deposit 25% of the disputed tax, i.e., apart from what is stated to have been already remitted in terms of GSTR-3B and they may be granted an opportunity to place their objection before the Adjudicating Authority. The above request was not seriously objected to by the learned Additional Government Pleader for the respondents.
Considering the fact that this Court, under similar circumstances, has found that the petitioner can be granted one opportunity on payment of 25% of the differential tax, this Court is inclined to direct the petitioner to deposit 25% of the differential tax between the tax remitted in terms of GSTR 3B and that which 5/8 https://www.mhc.tn.gov.in/judis
W.P.(MD) Nos.18870 to 18874 of 2024 is arrived at in terms of the order of assessment within a period of two weeks. If such tax is paid, the assessing Officer shall redo the assessment after hearing the petitioner.
As far as the period of September 2023 which is the disputed period in W.P.(MD)No.18874 of 2024 is concerned, it is submitted by the learned counsel for the petitioner that GST 3B has been filed on 103rd day from the date receipt of ASMT 13. It is also brought to the notice of this Court that vide Notification No. 28/2023-Central Tax dated 31.07.2023 and vide Section 148(b) of the Finance Act, 2023, the time limit to furnish the Return has been extended to 120 days.
It is submitted that the above proviso has not been considered by the Assessing Officer/respondent, which is applicable inasmuch as the impugned order is made only on 14.12.2023 i.e., after the amendment came into force.
In view there of, the impugned order in W.P.(MD)No.18874 of 2024 is set aside and the Assessing Officer/respondent shall consider the impact of the 6/8 https://www.mhc.tn.gov.in/judis
W.P.(MD) Nos.18870 to 18874 of 2024 above amendment and thereafter, proceed to pass fresh orders on merits and in accordance with law.
In the result, W.P.(MD)Nos.18870 to 18873 of 2024 are disposed of and W.P.(MD)No.18874 of 2024 is allowed, with above directions. No costs. Consequently, connected miscellaneous petitions are closed. Index : Yes / No 07.08.2024 Internet : Yes / No apd To The Assistant Commissioner, Sivagangai Assessement Circle, Sivagangai. 7/8 https://www.mhc.tn.gov.in/judis
W.P.(MD) Nos.18870 to 18874 of 2024 MOHAMMED SHAFFIQ, J.
apd W.P.(MD) Nos.18870 to 18874 of 2024 07.08.2024 8/8 https://www.mhc.tn.gov.in/judis
Reproduced from the public record of the Madras High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.