2024 (3) TMI 1085 - HC - GST

Power of High Court to entertain writ petition - statutory remedy of appeal - barred by limitation including extended period of limitation - challenged the determination of tax under best judgment assessment - return filed belatedly u/s 39 in Form GSTR-3B - Prayer to de-attach the bank account - violation of principles of natural justice - HELD THAT - Present is a case where the petitioner did not even file the appeal and allowed the order passed in assessment to become final and then filed writ petition seeking to challenge the determination through best judgment assessment, mainly on the basis of incorrect determination of tax liability in the light of return belatedly filed by the petitioner. Present is not a case where from the date of notice, return was either filed within the prescribed period, or even within the extended period under notice given to the petitioner. Even best judgment assessment was not challenged by filing an appeal and period of filing of appeal was allowed to expire. It was only thereafter that the writ petition was filed. Having not preferred an appeal, the petition in the present case, in view of the decision of Hon'ble Supreme Court in the case of Glaxo Smith Kline Consumer Health Care Limited 2020 (5) TMI 149 - SUPREME COURT , is not maintainable. When the petitioner failed to file his return, even a notice was issued to him to file return within 15 days. When no return was filed and the petitioner remained persistent defaulter, the Assessing Authority was left with no other option but to proceed to make best judgment assessment u/s 62 of the RGST Act, 2017. Therefore, the petitioner cannot complain of violation of principles of natural justice. The challenge to the determination under best judgment assessment, based mainly on factual aspects to the extent of tax liability, is not sustainable in view of the figure stated in the return which was filed by the assessee. All these grounds, though available to be raised by availing the remedy of appeal including extended period of limitation seeking condonation of delay, the petitioner, for reasons best known to him, did not avail the remedy. Therefore, present petition is liable to be dismissed and is accordingly dismissed.

Summary

Issues:
The issues involved in this case are the validity of an ex-parte assessment order, the declaration of statutory return in Form GSTR-3B, the permissibility of filing a monthly return after the due date, financial constraints leading to non-filing of returns, best judgment assessment under Section 62 of the RGST Act, 2017, failure to avail statutory remedy of appeal, and maintainability of the writ petition under Article 226 of the Constitution of India.

Validity of Ex-Parte Assessment Order:
The petitioner challenged an ex-parte assessment order dated 15.05.2023 passed by the Assistant Commissioner, Circle-I, Jaipur I Ward-II, Commercial Taxes Department, Jaipur. The petitioner sought a declaration that his statutory return in Form GSTR-3B for March 2023 is valid and holds primacy over the determination of liability in best judgment assessment. The petitioner also requested to de-attach the bank account. Financial constraints were cited as the reason for not filing the return within the stipulated period, leading to best judgment assessment under Section 62 of the RGST Act, 2017. The petitioner believed that filing the return under Section 39 would withdraw the best judgment assessment, resulting in the writ petition being filed due to the lack of appeal recourse.

Failure to Avail Statutory Remedy of Appeal:
The petitioner, despite being served with notices and given opportunities, did not file the return under Section 39 in Form GSTR-3B for March 2023 within the specified timeframes. The Assessing Authority proceeded with best judgment assessment as the petitioner remained a persistent defaulter. The petitioner did not challenge the best judgment assessment by filing an appeal within the prescribed time, allowing the order to become final. The legislative scheme provided a remedy of appeal, but the petitioner did not avail it, leading to the present writ petition being deemed not maintainable.

Maintainability of Writ Petition:
The Hon'ble Supreme Court's decision in Glaxo Smith Kline Consumer Health Care Limited highlighted that a writ petition challenging an assessment order beyond the statutory appeal period is not maintainable. The petitioner's failure to file an appeal, challenge the best judgment assessment, or address the tax liability issues through the proper appeal process rendered the writ petition unsustainable. The petitioner's case mirrored the circumstances in the Glaxo Smith Kline case, where the High Court dismissed the writ petition due to the failure to avail the statutory remedy of appeal within the prescribed time.

Conclusion:
In line with the decision in Glaxo Smith Kline Consumer Health Care Limited, the present petition was dismissed as the petitioner did not file an appeal, allowing the assessment order to become final before seeking redress through a writ petition. The petitioner's failure to comply with statutory timelines and avail the remedy of appeal rendered the challenge to the best judgment assessment unsustainable. The reliance on other court decisions was deemed irrelevant in light of the Supreme Court's ruling on the maintainability of such petitions. The writ petition was found not maintainable and was accordingly dismissed, along with any pending applications.