IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, 06TH DAY OF JULY 2020 / 15TH ASHADHA, 1942 WP(C).No.13493 OF 2020(J) PETITIONER/S: JOY MATHEW PROPRIETOR, ABRA FILM INTERNATIONAL, 33/4686, TOMS COTTAGE, MALAPARAMBA, KOZHIKODE-673009. BY ADV. SRI.K.I.MAYANKUTTY MATHER RESPONDENT/S: 1 UNION OF INDIA, THROUGH ITS SECRETARY (REVENUE), MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI G.O.P.-110001. 2 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM G.P.O., THIRUVANANTHAPURAM-695001. 3 GST COUNCIL, THROUGH ITS CHAIRPERSON, DEPARTMENT OF FINANCE, NORTH BLOCK, NEW DELHI P.O., NEW DELHI-110001. 4 STATE TAX OFFICER, OFFICE OF STATE TAX OFFICER, 2ND CIRCLE, SALES TAX COMPLEX BUILDING, 2ND FLOOR, JAWAHAR NAGAR COLONY, ERANHIPALAM P.O., KOZHIKODE-673006. 5 GOODS AND SERVICES TAX NETWORK, THROUGH ITS CHAIRMAN, EAST WING, 401 FLOOR, WORLD MARK-AERO CITY, GURGAON ROAD P.O., NEW DELHI-110037. 6 DEPUTY COMMISSIONER OF STATE TAX, SALES TAX COMPLEX BUILDING, 3RD FLOOR, JAWAHAR NAGAR COLONY, ERANHIPALAM P.O., KOZHIKODE-673006. OTHER PRESENT: SRI P VIJAYAKUMAR ASGI , GP DR THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2020, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No.13493 OF 2020(J) 2 JUDGMENT Dated this 6th day of July 2020 Through instant petition challenge has been laid to Exts.P4, P4 (a), P4(b) & P4 (c) Assessment orders and recovery notices Exts.P8, P8(b) & P8(c) with other consequential prayers. In support of aforementioned prayer, writ petition is based on facts that owing to advent of new GST regime in case petitioner who is registered with GST is of view that, is not liable to pay tax for these period need not file GST returns showing nil, but provisions of Act envisages requirement of filing returns. aforementioned difficulty has been agitated in present writ petition. 2. Petitioner, registered dealer on roles of 4 th respondent was granted registration under GST Act. It is engaged in production and distribution of films and had been regularly filing returns without fail. For period from July 2018, petitioner submitted payment of GST under CGST and SGST instead of IGST. State after filing of returns on input tax credit adjustment of Rs. 24.70 lakhs there was short WP(C).No.13493 OF 2020(J) 3 fall of IGST and excess payment towards CGST and SGST was of sum of Rs.12.93 lakhs. On account of fault committed by petitioner to file returns in month of July 2018 to March 2019, petitioner received notices dated 31 May 2019 in form of GSTR-3A purportedly under Section 46 of KGST Act and CST Act. They were received on 1st July 2018 as evidenced vide P1 to P1 (s) to c (2). notices pertained to period August 2018, October 2018 and December 2018. 3. In response to aforementioned, reply dated 25.9.2019 in accordance with provisions of statute, was filed as evidenced from Ext.P3. 4. Mr. K.I Mayinkutty Mather, learned Counsel for petitioner submitted that 4th respondent ignoring reply passed assessment order impugned order aforementioned and recovery notice are totally in derogation of Section 62 (1) of Act. He further submits that as per provisions of sub section 2 of Section 62 of GST Act, if on receipt of assessment orders under Section 62(1), assessee files returns within period 30 days of of said assessment orders, assessment orders issued are automatically recalled. WP(C).No.13493 OF 2020(J) 4 Petitioner on receipt of Exts.P1 to P1 (c) notices filed assessment vide Ext.P6 series on different dates, but within thirty days as Exts.P4 was dispatched on 19.9.2019, received on 27.9.2019. 5. Apparently, returns filed within time as evidenced from screenshots Ext.P7. 6. For reasons best known 4th respondent issued recovery notices Ext.P8 which are without adherence to sub Section 62(2) of GST Act. question of raising demand could not arise qua returns in respect of period referred to was not exigible to tax. 7. Issue notice before admission. Dr.Thushara James, learned Government Pleader accepts notice and submits that apparently there appears to be compliance of provisions of Act, but on perusal of Ext.P7 screen shots, it cannot be ruled out, petitioner purportedly complied with provisions of sub section 2 of Section 62 and is not averse of re-adjudication of matter, in case matter is revisited. 8. I have heard Counsel for parties and appraised paper books. On plain reading of Section 62 (2), extracted in paragraph 18 of writ petition which I need not reproduce it WP(C).No.13493 OF 2020(J) 5 again, it is not in doubt that whenever assessee fails to file return assessing officer is required to sent assessment order in terms of provisions Section 62 (1) of Act but, there is caveat in terms of provision under Section 62 (2) where on receipt of such information, as noticed above, was received by petitioner on 27.10 2019, petitioner filed returns on 25.10.2019 within 30 days. There could not have been occasion for issuing of recovery notices as assessment orders Ext.P4 were in law required be withdrawn. There appears apparent error and omission on part of revenue in not adhering to fact referred (supra). For reasons aforementioned impugned recovery notices Ext.P8 are set aside. Writ petition is allowed. 4th respondent is directed to look into returns filed as evidenced from Ext.P6 and P7 and take call on sustainability of Ext.P4. This exercise shall be undertaken after affording opportunity of hearing to petitioner in accordance with law. Sd/- AMIT RAWAL JUDGE Jm/ WP(C).No.13493 OF 2020(J) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF FORM GSTR -3A NOTICE ISSUED BY 4TH RESPONDENT - AUGUST 2018 DATED 31.5.2019. EXHIBIT P1(A) TRUE COPY OF FORM GSTR -3A NOTICE ISSUED BY 4TH RESPONDENT - OCTOBER 2018 DATED 31.5.2019. EXHIBIT P1(B) TRUE COPY OF FORM GSTR -3A NOTICE ISSUED BY 4TH RESPONDENT - NOVEMBER 2018 DATED 31.5.2019. EXHIBIT P1(C) TRUE COPY OF FORM GSTR -3A NOTICE ISSUED BY 4TH RESPONDENT - DECEMBER 2018 DATED 31.5.2019. EXHIBIT P2 TRUE COPY OF POSTAL COVER DATED 1.7.2019. EXHIBIT P3 TRUE COPY OF REPLY GIVEN BY PETITIONER TO 4TH RESPONDENT DATED 25.9.2019. EXHIBIT P4 TRUE COPY OF ASSESSMENT ORDER-GST- ASSESSMENT -13- AUGUST 2018 19.9.2019. EXHIBIT P4(A) TRUE COPY OF ASSESSMENT ORDER-GST- ASSESSMENT -13- OCTOBER 2018 DATED 23.9.2019. EXHIBIT P4(B) TRUE COPY OF ASSESSMENT ORDER-GST- ASSESSMENT -13- NOVEMBER 2018 DATED 19.9.2019. EXHIBIT P4(C) TRUE COPY OF ASSESSMENT ORDER-GST- ASSESSMENT -13- DECEMBER 2018 23.9.2019. EXHIBIT P5 TRUE COPY OF POSTAL COVER IN WHICH EXTS. P4, P4(A), P4(B) AND P4(C) WERE ENCLOSED DATED 27.9.2019. EXHIBIT P6 TRUE COPY OF FORM GSTR 3B RETURN FILED WP(C).No.13493 OF 2020(J) 7 BY PETITIONER FOR RETURN PERIOD- AUGUST 2018 SUBMITTED ON 25.10.19. EXHIBIT P6(A) TRUE COPY OF FORM GSTR 3B RETURN FILED BY PETITIONER FOR RETURN PERIOD- OCTOBER 2018 SUBMITTED ON 25.10.19. EXHIBIT P6(B) TRUE COPY OF FORM GSTR 3B RETURN FILED BY PETITIONER FOR RETURN PERIOD- NOVEMBER 2018 SUBMITTED ON 25.10.19. EXHIBIT P6(C) TRUE COPY OF FORM GSTR 3B RETURN FILED BY PETITIONER FOR RETURN PERIOD- DECEMBER 2018 SUBMITTED ON 25.10.19. EXHIBIT P7 TRUE COPY OF SCREENSHOT OF PETITIONER'S E-PORTAL EVIDENCING DATE OF SUBMISSION OF FORM GSTR 3B RETURNS FOR PERIODS - AUGUST 2018, OCTOBER 2018, NOVEMBER 2018 AND DECEMBER 2018. EXHIBIT P8 TRUE COPY OF FORM GST DRC 07- SUMMARY OF ORDERS FOR RETURN PERIOD- AUGUST 2018 DATED 23.11.2019. EXHIBIT P8(A) TRUE COPY OF FORM GST DRC 07- SUMMARY OF ORDERS FOR RETURN PERIOD- OCTOBER 2018 DATED 23.11.2019. EXHIBIT P8(B) TRUE COPY OF FORM GST DRC 07- SUMMARY OF ORDERS FOR RETURN PERIOD- NOVEMBER 2018 23.11.2019. EXHIBIT P8(C) TRUE COPY OF FORM GST DRC 07- SUMMARY OF ORDERS FOR RETURN PERIOD- DECEMBER 2018 DATED 23.11.2019. EXHIBIT P9 TRUE COPY OF E-MAIL COMMUNICATIONS ISSUED BY 5TH RESPONDENT TO PETITIONER DATED 22.2.2020. EXHIBIT P9(A) TRUE COPY OF E-MAIL COMMUNICATIONS ISSUED BY 5TH RESPONDENT TO PETITIONER DATED 22.2.2020. EXHIBIT P9(B) TRUE COPY OF E-MAIL COMMUNICATIONS ISSUED BY 5TH RESPONDENT TO PETITIONER DATED 1.3.2020. WP(C).No.13493 OF 2020(J) 8 EXHIBIT P10 TRUE COPY OF RECTIFICATION PETITION SUBMITTED BY PETITIONER BEFORE 4TH RESPONDENT (AUGUST 2018) DATED 22.2.2020. EXHIBIT P10(A) TRUE COPY OF RECTIFICATION PETITION SUBMITTED BY PETITIONER BEFORE 4TH RESPONDENT (OCTOBER 2018) DATED 22.2.2020. EXHIBIT P10(B) TRUE COPY OF RECTIFICATION PETITION SUBMITTED BY PETITIONER BEFORE 4TH RESPONDENT (NOVEMBER 2018) DATED 22.2.2020. EXHIBIT P10(C) TRUE COPY OF RECTIFICATION PETITION SUBMITTED BY PETITIONER BEFORE 4TH RESPONDENT (DECEMBER 2018) DATED 22.2.2020. Joy Mathew v. Union of India / State of Kerala / GST Council / State Tax Officer / Goods and Services Tax Network / Deputy Commissioner of State Tax