Dismissed

Hash Constructions v. the Deputy Commissioner

Kerala HC2 Feb 2021WP(C)/671/2021

Case brief

AI extract

What is this about?

This writ petition challenged an appellate order dismissing GST appeals on the grounds of uncondonable delay and non-deposit of court fees. The High Court held that since the petitioner did not file valid returns within 30 days of the assessment order under Section 62 of the CGST Act, the order was not withdrawn and the appeals were time-barred.

What did the court decide?

The writ petition was dismissed as the appeals were barred by limitation due to uncondonable delay.

Hash Constructions Vs the Deputy Commissioner — GST and Indirect Tax | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.M.BADAR

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TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

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WP(C).No.671 OF 2021(H)

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PETITIONER/S:

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HASH CONSTRUCTIONS, 22/31F, GH, MANGATTUKAVALA, THODUPUZHA EAST, IDUKKI - 685585, REPRESENTED BY ITS PROPRIETOR SRI.E.S. SUBAIR.

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BY ADVS. SRI.AJI V.DEV SRI.ALAN PRIYADARSHI DEV

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RESPONDENT/S:

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1 THE DEPUTY COMMISSIONER (FORMERLY ASSISTANT COMMISSIONER) STATE GOODS AND SERVICE TAX DEPARTMENT, SPECIAL CIRCLE, MINI CIVIL STATION, THODUPUZHA - 685608.

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2 THE JOINT COMMISSIONER (APPEALS) STATE GOODS AND SERVICES TAX DEPARTMENT, SGST COMPLEX, THEVARA, PERUMANOOR P.O, ERNAKULAM - 682015.

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3 THE COMMISSIONER OF STATE TAXES, TAX TOWER, KILLIPPALAM, KARAMANA P.O, THIRUVANANTHAPURAM - 695002.

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SMT THUSHARA JAMES – GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.671 OF 2021 2

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JUDGMENT

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Dated this the 2nd day of February 2021

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Heard both sides.

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By this writ petition, the petitioner is challenging the appellate order (Ext.P7) passed by the Joint Commissioner (Appeals) under the Central Goods and Services Tax Act ('the CGST Act' for brevity), thereby rejecting the appeals filed by the petitioner being barred by limitation, apart from non-deposit of 1% of the court fees as per th e KLBF .

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Learned Counsel appearing for the petitioner submitted that the petitioner could not file monthly returns prescribed under the GST Act for the period April 2018 to May 2019. Therefore, the 1^st respondent, being the Assessing Officer, has passed several orders under Section 62 of the GST Act in respect of the said period. The petitioner has annexed those orders in FORM GST ASMT-13 dated 15.05.2019 and 14.07.2019 at Exts.P1 to P1(m) with this writ petition.

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Learned counsel appearing for the petitioner submitted

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that subsequent to passing the orders to the best of his judgment by the Assessing Officer, orders in FORM GST DRC-07 [Exts.P2 to P2(m)] dated 22.10.2019, 27.11.2019 and 30.11.2019 came to be

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WP(C).No.671 OF 2021 3

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issued by the 1^st respondent. The petitioner preferred statutory appeal under section 107 of the GST Act. The petitioner has annexed copies of memo of appeals at Ext.P4 to P4(m) with this petition.

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Learned counsel appearing for the petitioner submitted that in fact, the orders at Exts.P1 to P1(m) passed under Section 62 of the CGST Act 2017 are not appealable orders and the appellate order is in fact the order in FORM GST DRC-07, which is the final order. For this purpose, the learned counsel appearing for the petitioner drew my attention to the order at Ext.P1 and submitted that this order itself makes it clear that if the return is filed within 30 days from the service of the order, then the order is deemed to have been withdrawn. By drawing my attention to the chart (Ext.P8) filed by the petitioner, the learned counsel for the petitioner argued that if the appeals are construed as appeals filed challenging the order in FORM GST DRC-07 [Exts.P2 to P2(m)], then but for one appeal, other appeals filed by the petitioner are within limitation and that one appeal also suffers from condonable delay. With this, learned counsel appearing for the petitioner submitted that the Appellate Authority erred in rejecting his appeal mainly on the ground that those appeals are suffering from

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WP(C).No.671 OF 2021 4

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uncondonable delay apart from the fact that the petitioner has not paid additional court fees at 1% of the disputed amount.

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Learned Government Pleader drew my attention to the provisions of Section 62 of the GST Act and submitted that only in case, in response to notice in FORM GST ASMT-13, the assessee files the return, then only the assessment order is deemed to have been withdrawn. In the case in hand, no such returns are filed and therefore, what is appealable is the assessment order in GST ASMT13 and not the recovery proceedings in FORM GST DRC-07.

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I have considered the submissions so advanced and perused the materials placed before me.

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Section 107 of CGST Act 2017 deals with appeals to Appellate Authority. Any person aggrieved by any decision or order passed under this Act can prefer an appeal to the designated appellate authority, within three months from the date on which such decision or order is communicated to him. The Appellate Authority, by virtue of Sub Section (4) of Section 107 of the Act is empowered to condone further delay of one month causing filing appeal provided sufficient cause for not presenting the appeal within the prescribed period of limitation is demonstrated. Thus, after further period of one month, the delay in preferring the appeal

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WP(C).No.671 OF 2021 5

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is not condonable.

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In the backdrop of this legal provision let me put on record provisions of Section 62 of the CGST Act2017, which reads

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thus:-

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- '' 62. Assessment of non-filers of returns

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(1) Notwithstanding anything to the contrary contained in section 73 or section 74, where a registered taxable 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 under Section 44 for furnishing of the annual return for the financial year to which the tax not paid relates.

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(2) Where the registered person furnishes a valid return within thirty 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.

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(3) This clause provides procedure of assessment of persons who have not filed returns by the due dates. This clause provides that the proper officer may proceed to assess the tax liability of the non-filer to the best of his judgment.''

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10. Bare perusal of this provision of CGST Act makes it clear

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that after making the assessment on the criteria best of the judgment by the Assessing Officer, a notice is required to be issued

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WP(C).No.671 OF 2021 6

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to the assessee along with the assessment order. The assessee is granted an opportunity of filing his returns. If such registered person furnishes valid returns in response to the best of the judgment assessment, then such assessment order is deemed to have been withdrawn. In the case in hand, despite receipt of assessment order under Section 62 of the Act, the petitioner registered person has not filed any valid return within 30 days from the receipt of the assessment order. This ultimately has resulted in issuance of demand notice in FORM GST DRC-07, mentioning the amount due and payable by the petitioner.

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The appeal as it stands is an appeal challenging the assessment made by the Assessing Officer to the best of his judgment as per the provisions of Section 62 of the GST Act. That assessment order is not deemed to have been withdrawn due to non-filing of valid return within 30 days of service of the assessment order under Section 62 of the Act. As such, it cannot be said that the appeals filed by the petitioner were in fact the appeals challenging the demand notice in FORM GST DRC-07. EVen during pendency of this appeals (Ext.P4), no amendment application was moved to delete the challenge so far as the Assessment Officer in order in FORM GST ASMT-13 is concerned or

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WP(C).No.671 OF 2021 7

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to incorporate the challenge to the orders in FORM GST DRC-07.

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Undisputeldy, the appeals [Ext.P4(series)] were filed on

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10.03.2020 and as such, those were filed after they suffered uncondonabe delay of more than four months. In this view of the matter, no fault can be filed in the impugned order rejecting the appeals as those suffered uncnondonable delay.

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The petition as such is devoid of merits and accordingly dismissed.

Sd/-

A.M.BADAR

JUDGE

ajt

WP(C).No.671 OF 2021 8

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE ASMT -13 FOR APRIL,	ORDER PASSED IN FORM GST 2018 DATED 15.05.2019.
EXHIBIT P1(a)	A TRUE COPY OF THE ASMT -13 FOR MAY, 2	ORDER PASSED IN FORM GST 018 DATED 15.05.2019.
EXHIBIT P1(b)	A TRUE COPY OF THE ASMT -13 FOR JUNE,	ORDER PASSED IN FORM GST 2018 DATED 15.05.2019.
EXHIBIT P1(c)	A TRUE COPY OF THE ASMT -13 FOR JULY ,	ORDER PASSED IN FORM GST 2018 DATED 15.05.2019.
EXHIBIT P1(d)	A TRUE COPY OF THE ASMT -13 FOR AUGUST	ORDER PASSED IN FORM GST , 2018 DATED 15.05.2019.
EXHIBIT P1(e)	A TRUE COPY OF THE ASMT -13 FOR SEPTEM 15.05.2019.	ORDER PASSED IN FORM GST BER, 2018 DATED
EXHIBIT P1(f)	A TRUE COPY OF THE ASMT -13 FOR OCTOBE 15.05.2019.	ORDER PASSED IN FORM GST R, 2018 DATED
EXHIBIT P1(g)	A TRUE COPY OF THE ASMT -13 FOR NOVEMB 15.05.2019.	ORDER PASSED IN FORM GST ER , 2018 DATED
EXHIBIT P1(h)	A TRUE COPY OF THE ASMT -13 FOR DECEMB 15.05.2019.	ORDER PASSED IN FORM GST ER, 2018 DATED
EXHIBIT P1(i)	A TRUE COPY OF THE ASMT -13 FOR JANUAR 15.05.2019.	ORDER PASSED IN FORM GST Y, 2019 DATED
EXHIBIT P1(j)	A TRUE COPY OF THE ASMT -13 FOR FEBRUA 15.05.2019.	ORDER PASSED IN FORM GST RY, 2019 DATED
EXHIBIT P1(k)	A TRUE COPY OF THE ASMT -13 FOR MARCH,	ORDER PASSED IN FORM GST 2019 DATED 14.07.2019.
EXHIBIT P1(l)	A TRUE COPY OF THE ASMT -13 FOR APRIL,	ORDER PASSED IN FORM GST 2019 DATED 14.07.2019.
EXHIBIT P1(m)	A TRUE COPY OF THE	ORDER PASSED IN FORM GST

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WP(C).No.671 OF 2021 9

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	ASMT -1	3 FOR MAY, 2019 DATED 14.07.2019.
EXHIBIT P2	A TRUE DRC -07	COPY OF THE ORDER PASSED IN FORM GST FOR APRIL, 2018 DATED 22.10.2019.
EXHIBIT P2(a)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR MAY,2018 DATED 27.11.2019.
EXHIBIT P2(b)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR JUNE, 2018 DATED 27.11.2019
EXHIBIT P2(c)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR JULY, 2018 DATED 27.11.2019
EXHIBIT P2(d)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR AUGUST, 2018 DATED 27.11.2019
EXHIBIT P2(e)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR SEPTEMBER, 2018 DATED 27.11.2019
EXHIBIT P2(f)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR OCTOBER, 2018 DATED 27.11.2019
EXHIBIT P2(g)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR NOVEMBER, 2018 DATED 27.11.2019
EXHIBIT P2(h)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR DECEMBER, 2018 DATED 27.11.2019
EXHIBIT P2(i)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR JANUARY, 2019 DATED 27.11.2019
EXHIBIT P2(j)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR FEBRUARY, 2019 DATED 27.11.2019
EXHIBIT P2(k)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR MARCH, 2019 DATED 30.11.2019
EXHIBIT P2(l)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR APRIL, 2019 DATED 30.11.2019
EXHIBIT P2(m)	A TRUE DRC 07	COPY OF THE ORDER PASSED IN FORM GST FOR MAY, 2019 DATED 30.11.2019
EXHIBIT P3	A TRUE APRIL 2	COPY OF THE MONTHLY RETURN FILED FOR 018.
EXHIBIT P3(a)	A TRUE MAY 201	COPY OF THE MONTHLY RETURN FILED FOR 8.
EXHIBIT P4	A TRUE 2018 DA	COPY OF THE APPEAL FILED FOR APRIL, TED 10.03.2020

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WP(C).No.671 OF 2021 10

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EXHIBIT P4(a)	A TRUE COPY OF THE APPEAL FILED FOR MAY, 2018 DATED 10.03.2020.
EXHIBIT P4(b)	A TRUE COPY OF THE APPEAL FILED FOR JUNE, 2018 DATED 10.03.2020.
EXHIBIT P4(c)	A TRUE COPY OF THE APPEAL FILED FOR JULY, 2018 DATED 10.03.2020.
EXHIBIT P4(d)	A TRUE COPY OF THE APPEAL FILED FOR AUGUST, 2018 DATED 10.03.2020.
EXHIBIT P4(e)	A TRUE COPY OF THE APPEAL FILED FOR SEPTEMBER, 2018 DATED 10.03.2020.
EXHIBIT P4(f)	A TRUE COPY OF THE APPEAL FILED FOR OCTOBER, 2018 DATED 10.03.2020.
EXHIBIT P4(g)	A TRUE COPY OF THE APPEAL FILED FOR NOVEMBER, 2018 DATED 10.03.2020.
EXHIBIT P4(h)	A TRUE COPY OF THE APPEAL FILED FOR DECEMBER., 2018 DATED 10.03.2020.
EXHIBIT P4(i)	A TRUE COPY OF THE APPEAL FILED FOR JANUARY, 2019 DATED 10.03.2020.
EXHIBIT P4(j)	A TRUE COPY OF THE APPEAL FILED FOR FEBRUARY, 2019 DATED 10.03.2020.
EXHIBIT P4(k)	A TRUE COPY OF THE APPEAL FILED FOR MARCH, 2019 DATED 10.03.2020.
EXHIBIT P4(l)	A TRUE COPY OF THE APPEAL FILED FOR APRIL, 2019 DATED 10.03.2020.
EXHIBIT P4(m)	A TRUE COPY OF THE APPEAL FILED FOR MAY, 2019 DATED 10.03.2020.
EXHIBIT P5	A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT RELATING TO THE APPEAL FILED FOR APRIL, 2018 DATED 20.08.2020
EXHIBIT P6	A TRUE COPY OF THE REPLY FILED BY THE PETITIONER RELATING TO THE APPEAL FOR APRIL, 2018 DATED 28.09.2020.
EXHIBIT P7	A TRUE COPY OF THE APPELLATE ORDER (COMMON ORDER PASSED FOR 14 APPEALS), PASSED DATED 31.10.2020.

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WP(C).No.671 OF 2021 11

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EXHIBIT P8 A COMPUTATION SHEET SHOWING THE ACTUAL CALCULATION OF DELAY IN FILING EXT.P4 SERIES OF APPEALS. EXHIBIT P9 A TRUE COPY OF ORDER PASSED BY THE HON'BLE APEX COURT IN WRIT PETITION NO.03.2020 DATED 23.03.2020. EXHIBIT P10 A TRUE COPY OF THE JUDGMENT IN V.M.MOHAMMED VS. ASST.COMMISSIONER AND ORS IN WP(C) NO. 13700/2016. EXHIBIT P11 A TRUE COPY OF THE JUDGMENT IN J AND A FOUNDATIONS (P)LTD VS. DEPUTY COMMISSIONER (APPEALS) AND ANR IN WP(C) NO.21161/2016.

Hash Constructions v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

Hash Constructions v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

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