2020 (11) TMI 714 - HC - GST

Maintainability of appeal - ex parte order of assessment - principles of natural justice - HELD THAT - It would be only more appropriate, as is also so submitted by Shri Gautam Kumar Kejriwal, learned counsel for the petitioner, that the petitioner approaches the appellate authority highlighting the issues raised before this Court, as also pointing out the errors apparent on the face of record, if any, enabling the authority to reconsider the petitioner s case based on the material so placed. Shri Pawan Kumar, learned counsel appearing for the State/authority, states that petitioner failed to exercise his statutory right as envisaged under Section 62 of the Act, leaving no option with the authority to pass the order. On merits, we do not express any opinion and leave it to the wisdom of the appellate authority to consider all these issues, to the attending facts. The appellate authority shall consider all aspects and take a decision, preferably within a period of two months thereafter - Petition disposed off.

Summary

Issues:
1. Petition for quashing appellate order and ex parte assessment order
2. Declaration regarding merger of assessment order with filed return
3. Interpretation of tax and interest liability under GST Act
4. Applicability of Sections 16, 37, 39, 44, and 62 of the Central Goods and Services Tax Act, 2017
5. Constitution of Tribunal under the GST Act
6. Statutory rights of the petitioner under Section 62 of the Act

Analysis:
1. The petitioner sought relief through a writ petition to quash an appellate order and an ex parte assessment order. The appellate order dated 05.03.2020 and the assessment order dated 14.09.2019 were challenged on various grounds, including the failure to consider contentions related to Sections 16, 37, 39, 44, and 62 of the Central Goods and Services Tax Act, 2017 (GST Act).

2. The petitioner also requested a declaration that the assessment order dated 14.09.2019 should be merged with the filed return in form GSTR 3B for the month of July 2019 concerning the actual figures of purchase, sale, and tax liability admitted and paid. The petitioner argued that the determination of tax and interest liability under Section 62 of the GST Act should be based on actual figures rather than presumptions.

3. The Court noted that the Tribunal under the GST Act had not been constituted at the time of the proceedings, leading the petitioner to approach the High Court under Article 226 of the Constitution of India. The Court emphasized the petitioner's right to appeal before the appellate authority and pointed out that errors apparent on the face of the record should be highlighted for reconsideration.

4. The parties' counsels presented arguments regarding the petitioner's statutory rights under Section 62 of the GST Act. The petitioner contended that even after the issuance of an order under Section 62, they retained the right to avail remedies available before that stage. The Court refrained from expressing any opinion on the merits of the case and directed the petitioner to address the issues before the appellate authority.

5. The Court disposed of the petition by instructing the petitioner to appear before the appellate authority and present the raised issues on 30.11.2020. The appellate authority was directed to consider all aspects and make a decision within two months. The Court left all issues open for further consideration by the appellate authority and permitted the authority to pass a fresh order if necessary.

6. Until a decision was made by the authority, the Court prohibited any coercive action for the recovery of the amount against the petitioner. The Court did not entertain any other submissions from the parties, and any interlocutory applications were deemed disposed of.