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2020 (8) TMI 733 - HC - GSTRecovery of GST - non filing of returns - notices pertained to period August 2018, October 2018 and December 2018 - Section 62 (1) of GST Act - HELD THAT - Apparently, the returns filed within time as evidenced from screenshots Ext.P7 - For the reasons best known 4th respondent issued recovery notices Ext.P8 which are without adherence to sub Section 62(2) of the GST Act. The question of raising demand could not arise qua the returns in respect of the period referred to was not exigible to tax. On a plain reading of Section 62 (2), extracted in paragraph 18 of the writ petition which I need not reproduce it again, it is not in doubt that whenever an assessee fails to file a return an assessing officer is required to sent the assessment order in terms of provisions Section 62 (1) of the Act but, there is a caveat in terms of provision under Section 62 (2) where on receipt of such information, as noticed above, was received by the petitioner on 27.9 2019, petitioner filed the returns on 25.10.2019 within 30 days. There could not have been an occasion for issuing of recovery notices as assessment orders Ext.P4 were in law required be withdrawn. There appears an apparent error and omission on the part of the revenue in not adhering to the fact referred. For the reasons aforementioned impugned recovery notices Ext.P8 are set aside. 4th respondent is directed to look into the returns filed as evidenced from Ext.P6 and P7 and take a call on sustainability of Ext.P4 - Petition allowed.
Issues: Challenge to assessment orders and recovery notices under the GST Act.
In this case, the petitioner challenged assessment orders and recovery notices issued under the GST Act. The petitioner, a registered dealer engaged in film production and distribution, had filed returns but made errors in payment under CGST and SGST instead of IGST. Due to this, there was a shortfall in IGST payment. The petitioner received notices for non-filing of returns for certain periods. The petitioner responded to the notices as required by law. The petitioner argued that the assessment orders and recovery notices were not in line with Section 62(1) of the Act. The petitioner contended that under Section 62(2), if returns are filed within 30 days of assessment orders, the orders should be automatically recalled. The petitioner filed returns within the stipulated time, but recovery notices were still issued, which the petitioner argued was contrary to the law. The court analyzed the provisions of Section 62(2) of the GST Act and found that if an assessee fails to file a return, the assessing officer must send an assessment order. However, there is a provision under Section 62(2) that allows for the automatic recall of assessment orders if returns are filed within 30 days. In this case, the petitioner filed returns within the specified time frame, which should have led to the withdrawal of assessment orders. The court noted an error on the part of the revenue for not adhering to this provision. Consequently, the court set aside the recovery notices and directed the 4th respondent to review the returns filed by the petitioner and determine the sustainability of the assessment orders. The court ordered that this review should include giving the petitioner an opportunity to be heard in accordance with the law. Thus, the writ petition was allowed in favor of the petitioner, highlighting the importance of adherence to statutory provisions in issuing assessment orders and recovery notices under the GST Act.
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