M/S.Umesh Electricals vs. Commercial Tax Officer
Original PDF →Facts
The petitioner, M/s. Umesh Electricals, filed a writ petition challenging an order dated 20.02.2024 passed by the Commercial Tax Officer, Tuticorin-1 Assessment Circle. This order was preceded by several notices, including ASMT-10 dated 14.03.2023, DRC 01A dated 21.07.2023, and DRC 01 dated 05.09.2023, and a notice for personal hearing on 11.09.2023. The petitioner claims to have failed to take advantage of these opportunities and consequently suffered an adverse order. The petitioner asserts that there is no mismatch between their GSTR 1 and GSTR 3B returns and that they can substantiate their case on other issues. The revenue opposed the petition, arguing it was time-barred due to latches and that the appellate remedy was also time-barred.
Held
The Court, having considered the arguments, was of the view that the petitioner may have a case on merits. Consequently, discretion was exercised partly in favour of the petitioner. The impugned order dated 20.02.2024 was quashed. The matter was remitted back to the first respondent for a fresh consideration on merits. This relief was granted subject to the petitioner depositing 25% of the disputed tax to the credit of the first respondent from its Electronic Cash Register within 30 days. The impugned order was to be treated as an addendum to the show cause notices. The petitioner was directed to file a reply within 30 days of receiving the order, along with the deposit. The first respondent was directed to pass a fresh order expeditiously, preferably within two months thereafter, after hearing the petitioner. The petitioner's bank account was to be de-freezed or the pre-deposit amount recovered from it, subject to the deposit being made.
Key Issues
1. Whether the Writ Petition is liable to be dismissed on grounds of being time-barred and suffering from latches, in light of the Supreme Court's decision in Assistant Commissioner (CT) LTU, Kakinada and others vs. Glaxo Smith Kline Consumer Health Care Limited? 2. Whether the appellate remedy under Section 107 of the respective GST Enactments is time-barred, as held by the Supreme Court in Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others? The petitioner argued that they have a fair case to establish no mismatch between GSTR 1 and GSTR 3B returns and can substantiate their case on other issues. The revenue contended that the Writ Petition is hopelessly time-barred due to latches, citing the Glaxo Smith Kline case, and that the appellate remedy is also time-barred under Section 107 of the GST Enactments, referencing the Singh Enterprises case. The revenue argued that the petition should be dismissed on these grounds.
Sections Cited
Section 107
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Before: and
Heard learned counsel for the petitioner, learned Additional Government Pleader for the first respondent and learned Standing Counsel for the second respondent.
The petitioner is before this Court against the impugned order passed by the first respondent dated 20.02.2024 for the assessment year 2017-18 bearing reference in No.ZD330224112844R.
The impugned order has preceded the notices in ASMT-10 dated 14.03.2023, DRC 01A dated 21.07.2023 and DRC 01 dated 05.09.2023. The petitioner was also issued with a notice for personal hearing on 11.09.2023 through GST common portal.
It appears that the petitioner has failed to take advantage of the same and 2/6 https://www.mhc.tn.gov.in/judis has thus, suffered with adverse order in the hands of the respondent. The petitioner seeks one opportunity to explain the case.
According to the petitioner, the petitioner has a fair case to establish that there is no mismatch between the Return in GSTR 1 and GSTR 3B.
The learned counsel for the petitioner submits that on the other issues also, the petitioner will be able to substantiate the case.
The above submission is opposed by the learned Additional Government Pleader for the first respondent, on the ground that the Writ Petition is hopelessly time barred and therefore, liable to be dismissed, on account of latches, in the light of the decision of the Hon'ble Supreme Court in the case of Assistant 3/6 https://www.mhc.tn.gov.in/judis Hon'ble Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others reported in (2008) 3 SCC 70 and submitted that this Writ Petition is liable to be dismissed.
Having considered the arguments advanced by the learned counsel for the petitioner, the learned Additional Government Pleader for the first respondent and the learned Standing Counsel for the second respondent, this Court is of the view that the petitioner may have a case on merits and therefore, discretion is exercised partly in favour of the petitioner by quashing the impugned order and remitting the case back to the first respondent to pass a fresh order on merits, subject to the petitioner depositing 25% of disputed tax to the credit of the first respondent from its Electronic Cash Register within a period of 30 days from the date of receipt of this order.
The impugned order, which stands quashed, shall be treated as addendum to the show cause notices that preceded the impugned order.
It is expected that the petitioner shall file a reply within a period of 30 4/6 https://www.mhc.tn.gov.in/judis days from the date of receipt of a copy of this order, together with above deposit. The first respondent shall pass a fresh order on merits and in accordance with law as expeditiously as possible preferably within a period of two months thereafter. Needless to state, the petitioner shall be heard before passing the order.
Subject to the petitioner depositing the aforesaid amount, the petitioner's Bank Account shall be de-freezed or in alternative the aforesaid amount shall be recovered as pre-deposit from the petitioner's Bank Account. This Writ Petition is disposed of, with above direction. No costs. Consequently connected miscellaneous petitions are closed. Index : Yes / No 01.08.2024 Internet : Yes / No apd To Commercial Tax Officer, Tuticorin-1 Assessment Circle, No.6R, North Cotton Road, Thoothukudi, Tamil Nadu – 628 001. 5/6 https://www.mhc.tn.gov.in/judis C.SARAVANAN, J.
apd
2024 6/6 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.