IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR MONDAY, 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942 WP(C).No.14376 OF 2020(V) PETITIONER/S: PEE BEE ENTERPRISES 41/1472, KRISHNASWAMI ROAD, ERNAKULAM 682 307 REPRESENTED BY ITS MANAGING PARTNER DINU CHANDRASEKHARAN BY ADV. SRI.RAJESH NAMBIAR RESPONDENT/S: 1 ASSISTANT COMMISSIONER O/O ASSISTANT COMMISSIONER-2 SPECIAL CIRCLE 2, STATE GOODS AND SERVICE TAX DEPARTMENT, SGST COMPLEX, PERUMANOOR P.O, ERNAKULAM 682 015 2 COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM 695 001 R1 BY GOVERNMENT PLEADER OTHER PRESENT: GP DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.08.2020, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No.14376 OF 2020(V) 2 JUDGMENT petitioner has approached this Court aggrieved by Exts.P1 and P2 assessment orders and Exts.P8 and P9 consequential demand notices issued him under GST Act. In writ petition it is case of petitioner that assessments pertaining to months April and May 2019 were completed under Section 62 of SGST Act on best judgment basis, taking note of non filing of returns by petitioner assessee for said month. While assessment orders are dated 20.8.2019, it is case of petitioner that these orders were not served on him till much later and within 30 days after from date of receipt of orders, he filed returns as permitted under Section 62 of SGST Act. He contends, therefore, that assessment orders have to be treated as withdrawn by virtue of provisions of Section 62 of Act. 2. through statement filed by 1 st respondent pursuant to direction from this Court, it is stated as follows in Paragraphs 8 to 12:- 8. assessment order in ASMT.13 dated 20.8.2019 has been issued by utilizing option available with common Portal. While issuing ASMT. 13. copy of ASMT.I3 is emailed to registered email id of taxable person at once. Her actual issuance of ASMT.13 is 20.8.2019 itself, but petitioner filed returns for period April and May 2019 in GSTR.3B only on 30.10.2019 ie., with delay of 71 days. Since filing is not within 30 days. ASMT.13 cannot be withdrawn and petitioner is liable to pay amount as per ASMT. 13 and that was followed with demand notice in DRC.07. It is submitted that petitioner has not produced copy of order in ASMT-13 dated 20.8.2019 received on 20.08.2019 through common portal for verification of this Honourable Court, instead produced copy of order taken from portal attached with demand notice in DRC.07 WP(C).No.14376 OF 2020(V) 3 by subsequent officer for further perusal of petitioner. 9.The above ASMT.13 dated 20.08.2019 was issued by Since proper officer Sri.K.Binil. Assistant Commissioner. petitioner has not filed returns within 30 days of assessment order (returns have to be filed on or before 18.09.2019), taxable person has liability to pay demands raised as assessment order. Subsequently, copy of above order. signed by Sri.K.Binil, Assistant Commissioner was despatched to petitioner and which was seen acknowledged by him on 30.09.2019as admitted by petitioner. Without prejudice to above contentions, if it is taken that despatch date alone is to be considered, even then it can be found that there is delay of one day in filing of return Postal acknowledgment is on 30.09.2019, and filing of return is only on 30.10.2019. 10.Since petitioner did not file returns within 30 days of Assessment order, then proper officer who had taken over charge, Smt.Jhancy C.J. issued demand notice in DRC.07. Along with DRC.07, she generated ASMT.13 again to issue along with DRC.07. Then date of order 20.08.2019 has not changed but only name of Proper officer, Smt.Jhancy was reflected,It is fact that ASMT.13 already sent through email on 20.08.2019 itself, and for abundant caution its manual copy also served and acknowledged by petitioner on 30.09.2019. 11. Copy of computer screen shot of petitioner reflecting date of Notice and date of order relating to petitioner is produced herewith and may be marked as AnnexureR1(a). 12.A true copy of postal acknowledgment dated 30.09.201I9 by petitioner regarding assessment order dated 20.08.2019 issued by 1st respondent is produced herewith and may be markedasAnnexureR1(b). WP(C).No.14376 OF 2020(V) 4 3. I have heard learned counsel appearing for petitioner and also learned Government Pleader appearing for respondents. 4. On consideration of facts and circumstances of case as also submissions made across Bar, I find from reading of statement of respondent that assessment orders dated 20.8.2019 were served on petitioner through publication on web portal on 20.8.2019 itself. Over and above that, email was also sent to petitioner at his registered email id, although petitioner says that he did not receive email but received only copy of or through registered post much later. I find however, that service of order through web portal is one of methods of service statutorily prescribed under Section 161(1)(c) and (d) of SGST Act. If that be so, then petitioner cannot deny fact of receipt of order on 28.9.2019 for purposes of filing returns as contemplated under Section 62 of SGST Act with view to getting assessment order withdrawn. In as much as return filed by petitioner for period April and May 2019 was only on 30.10.2019,ie., 71 days after date of service of assessment order through web portal (20.8.2019), petitioner cannot aspire to get benefit of withdrawal o f assessment orders contemplated under Section 62 of SGST Act. assessment orders would therefore have to be held valid and remedy of petitioner against said assessment order can only be through appeal before appellate authority under Act. Taking note of submission of learned counsel for petitioner WP(C).No.14376 OF 2020(V) 5 that he would require some time to move appellate authority, I direct that recovery steps for recovery of amounts confirmed against petitioner by Exts.P1 and P2 assessment orders and Exts. P8 and P9 demand notices shall be kept in abeyance for period of one month so as to enable petitioner to move appellate authority in meanwhile and obtain orders of stay in stay application filed along with appeal. If petitioner files appeal within period of two weeks from date of receipt of copy of this judgment, then appellate authority shall treat appeals as filed within time, and proceed to consider stay applications preferred by petitioner on merits after hearing petitioner. 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.14376 OF 2020(V) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF ASSESSMENT ORDER DATED 20- 08-2019 FOR PERIOD APRIL 2019 EXHIBIT P2 TRUE COPY OF ASSESSMENT ORDER DATED 20- 08-2019 FOR PERIOD MAY 2019 EXHIBIT P3 TRUE COPY OF NOTICE U/S 46 DATED 14-07- 2019 FOR PERIOD APRIL 2019 EXHIBIT P4 TRUE COPY OF NOTICE U/S. 46 DATED 14- 07-2019 FOR PERIOD MAY 2019 EXHIBIT P5 TRUE COPY OF GSTR 3B RETURN FOR PERIOD APRIL 2019 EXHIBIT P6 TRUE COPY OF GSTR 3B RETURNS FOR PERIOD MAY 2019 EXHIBIT P7 TRUE COPY OF ONLINE TRACK RETURN STATUS EXHIBIT P8 TRUE COPY OF DEMAND NOTICES IN FORM GST DRC-07 FOR PEREIOD APRIL 2019 EXHIBIT P9 TRUE COPIES OF DEMAND NOTICES IN FORM GST DRC 07 FOR PERIOD MAY 2019 EXHIBIT P10 TRUE COPY OF DRAFT ANNUAL RETURN FOR PREVIOUS YEAR 2018-19 EXHIBIT P11 TRUE COPY OF GSTR2A DETAILS FOR MONTH OF APRIL 2019 EXHIBIT P11 TRUE COPY OF GSTR2A details for month of may 2019 Pee Bee Enterprises v. Assistant Commissioner -2, Special Circle - 2, State Goods and Service Tax Department, Ernakulam / Commissioner, State Goods and Service Tax Department , Thiruvananthapuram