IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, 30TH DAY OF JULY 2020 / 8TH SRAVANA, 1942 WP(C).No.2757 OF 2020(T) PETITIONER/S: AMANI MACHINE CENTRE 19/383,D,E,G,G,J,K,AL-NOON BUILDING,NH BYPASS,VATAKARA,KERALA-673101,REPRESENTED BY ITS MANAGING PARTNER BAIJU.K. BY ADV. SRI.DHEERAJ KRISHNAN PEROT RESPONDENT/S: STATE TAX OFFICER STATE GOODS AND SERVICE TAX DEPARTMENT, VADAKARA-673101. OTHER PRESENT: GP: THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2020, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No.2757 OF 2020(T) 2 JUDGMENT petitioner has approached this Court aggrieved by Exts.P12 to 22 assessment orders passed under Section 62 of Goods and Services Tax Act('the Act' for short). In writ petition, it is his case that after receipt of said assessment order, he submitted relevant returns viz. Exts.P23 to P33, on various date between November and December 2019. It is admitted though, that returns were not filed within 30 days from date of service of assessment orders under Section 62 and, therefore, petitioner will not get benefit contemplated under Section 62(2) whereby said orders would have been deemed withdrawn save for payment of interest or payment of late fee under Section 47. learned counsel for petitioner would, however, contend that, in as much as provisions of Section 62(1) make reference to Section 44 of Act, which deals with furnishing of annual returns, and enables assessing authority under Section 62 of Act, to pass assessment orders on best judgment basis within period of five years from date specified under Section 44 for furnishing of annual returns, best judgment assessment itself could have been completed only after December of financial year, which is period mentioned in Section 44 of CGST Act. contention, in other words, is that in as much as petitioner has period till 31st of December, following end of financial year, for preferring annual returns, said period must also been seen as date from which alone respondents could proceed to complete best judgment assessment, under Section 62 of Act. WP(C).No.2757 OF 2020(T) 3 2.I have heard learned counsel appearing for petitioner and also learned Government Pleader appearing for respondents. 3. On consideration of facts and circumstances of case as also submissions made across Bar, I find it difficult to accept proposition canvassed by learned counsel for petitioner, with reference to Section 62 r/w Section 44 of Act. In my view, reference to Section 44 of Act, in Section 62, is only for purpose of determining five year period within which assessing officer has to complete best judgment assessment. It does not, in my view, mandate that steps for completing best judgment assessment should be initiated only after 31st December, following end of financial year, in which default as regards filing of monthly returns occured. In other words, Section 62 of Act must be seen as enabling Assessing Officer to proceed to assess tax liability of person, who has not furnished returns inter alia under Section 39, even after service of notice under Section 46, on best judgment basis, and thereafter issue assessment order within period of five years from date indicated under Section 44 for furnishing of annual returns. Hence, while best judgment assessment can be done immediately after detection of failure to file returns despite service of notice, outer time limit for completing best judgment assessment is five years from date specified under Section 44 of Act. time limit of five years indicated in S. 62 (i) has to be seen as outer limit prescribed by statute for exercise of power by assessing authority, and not as indicative of any particular point in time from when, after detection of default committed by assessee, assessing authority can proceed to complete assessment on best judgment basis. WP(C).No.2757 OF 2020(T) 4 In instant case, it is not in dispute that petitioner did not furnish valid return within 30 days from service of assessment orders under Section 62(1) of Act. That being case, it would follow that petitioner cannot obtain benefit under Section 62(2) of Act, for deeming assessment orders already passed on best judgment basis as withdrawn. writ petition in its challenge to assessment orders therefore fails and is dismissed. Taking note of submission of learned counsel for petitioner that he would require some time to prefer appeals against assessment orders in question, I direct that recovery proceedings for recovery of amounts confirmed against petitioner by Exts.P12 to P23 assessment orders shall be kept in abeyance for period of six weeks so as to enable petitioner to move Appellate Authority, in its challenge against said assessment orders, in meanwhile. petitioner shall produce copy of writ petition together with copy of this judgment, before respondents, for further action. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE SJ WP(C).No.2757 OF 2020(T) 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF EMAIL COMMUNICATION DATED 22.11.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190019351 FOR DEMAND OF RS.4,65,366/-FOR MONTH OF AUGUST 2018. EXHIBIT P2 TRUE COPY OF EMAIL COMMUNICATION DATED 22.11.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190019371 FOR DEMAND OF RS.4,62,424/-FOR MONTH OF SEPTEMBER 2018. EXHIBIT P3 TRUE COPY OF EMAIL COMMUNICATION DATED 22.11.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190019391 FOR DEMAND OF RS.4,57,324/-FOR MONTH OF 0CTOBER 2018. EXHIBIT P4 TRUE COPY OF EMAIL COMMUNICATION DATED 26.11.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190019401 FOR DEMAND OF RS.4,51,440/-FOR MONTH OF NOVEMBER 2018. EXHIBIT P5 TRUE COPY OF EMAIL COMMUNICATION DATED 29.11.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190019431 FOR DEMAND OF RS.4,45,360/-FOR MONTH OF DECEMBER 2018. EXHIBIT P6 TRUE COPY OF EMAIL COMMUNICATION DATED 26.12.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190019461 FOR DEMAND OF RS.4,91,454/-FOR MONTH OF JANUARY 2019. EXHIBIT P7 TRUE COPY OF EMAIL COMMUNICATION DATED 26.12.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190019491 FOR DEMAND OF RS.5,25,390/-FOR MONTH OF FEBRUARY 2019. WP(C).No.2757 OF 2020(T) 6 EXHIBIT P8 TRUE COPY OF EMAIL COMMUNICATION DATED 26.12.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190019521 FOR DEMAND OF RS.4,47,460/-FOR MONTH OF MARCH 2019. EXHIBIT P9 TRUE COPY OF EMAIL COMMUNICATION DATED 26.12.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190022031 FOR DEMAND OF RS.4,22,414/-FOR MONTH OF APRIL 2019. EXHIBIT P10 TRUE COPY OF EMAIL COMMUNICATION DATED 26.12.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190022151 FOR DEMAND OF RS.4,16,334/-FOR MONTH OF MAY 2019. EXHIBIT P11 TRUE COPY OF EMAIL COMMUNICATION DATED 26.12.2019 WHERE PETITIONER IS ASSESSED UNDER SECTION ASMT 13 AS PER ORDER NO.ZJ3209190022191 FOR DEMAND OF RS.4,10,450/-FOR MONTH OF JUNE 2019. EXHIBIT P12 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT DATED 20.9.2019 FOR MONTH OF AUGUST 2018. EXHIBIT P13 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT DATED 20.9.2019 FOR MONTH OF SEPTEMBER 2018. EXHIBIT P14 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT DATED 20.9.2019 FOR MONTH OF 0CTOBER 2018. EXHIBIT P15 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT DATED 20.9.2019 FOR MONTH OF NOVEMBER 2018. EXHIBIT P16 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT DATED 20.9.2019 FOR MONTH OF DECEMBER 2018. EXHIBIT P17 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT WP(C).No.2757 OF 2020(T) 7 DATED 20.9.2019 FOR MONTH OF JANUARY 2019. EXHIBIT P18 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT DATED 20.9.2019 FOR MONTH OF FEBRUARY 2019. EXHIBIT P19 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT DATED 20.9.2019 FOR MONTH OF MARCH 2018. EXHIBIT P20 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT DATED 23.9.2019 FOR MONTH OF APRIL 2019. EXHIBIT P21 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT DATED 23.9.2019 FOR MONTH OF MAY 2019. EXHIBIT P22 TRUE COPY OF ASSESSMENT ORDER IN FORM GST ASTM-13 UNDER SECTION 62 OF ACT DATED 20.9.2019 FOR MONTH OF JUNE 2019. EXHIBIT P23 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH FOR AMOUNT OF AUGUST -2018 DATED 28.11.2019 EXHIBIT P24 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF SEPTEMBER-2018 DATED 22.12.2019 EXHIBIT P25 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF OCTOBER -2018 DATED 05.12.2019 EXHIBIT P26 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF NOVEMBER-2018 DATED 05.12.2019 EXHIBIT P27 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF DECEMBER-2018 DATED 05.12.2019 EXHIBIT P28 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF JANUARY -2019 DATED 05.12.2019 EXHIBIT P29 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF FEBRUARY-2019 DATED 05.12.2019 EXHIBIT P30 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF MARCH-2019 DATED 05.12.2019 WP(C).No.2757 OF 2020(T) 8 EXHIBIT P31 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF APRIL-2019 DATED 05.12.2019 EXHIBIT P32 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF MAY-2019 DATED 05.12.2019 EXHIBIT P33 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF MAY-2019 DATED 09.12.2019 EXHIBIT P34 TRUE COPY OF GSTR-3B RETURN MADE FOR MONTH OF JUNE -2019 DATED 09.12.2019 EXHIBIT P35 TRUE COPY OF REPLY FROM ADDTITIONAL 2ND RESPONDENT DATED 03.02.2020 Amani Machine Centre v. State Tax Officer