2023 (5) TMI 128 - HC - GST

Seeking remission of amount in instalments (admitted liability) - applicability of Section 80 of TNGST Act - Recovery of arrears in payment of admitted tax - Difference between Taxable value reported in GSTR-3B and GSTR-I - allegation as against the petitioner was that there had been sales suppression (outward supply) - HELD THAT - The object of Section 80 is to benefit an assessee who approaches the Commissioner for a scheme of instalments. The sole exception to the application of Section 80 is in respect of admitted tax. The language in Section 80 is 'other than the amount due as per the liability self assessed in any return'. The petitioner thus argues that the form GSTR I does not comprise a return and thus the exclusion that is set out under Section 80 would not apply to it. This argument is rejected in limine for the following reasons. Section 2 (37) defines a return , to mean 'any return prescribed or otherwise required to be furnished by or under this Act or the Rules made thereunder'. Learned counsel for the petitioner also attempts to state that the impugned order under Section 80 has been passed even prior to the assessment having framed under Section 73. However, Section 80 makes no reference to an assessment at all. It only talks of turnover that has been self-assessed. In this case, the petitioner has filed the prescribed form setting forth the details of the outward supplies and the question of assessment does not arise. Incidentally, an assessment has also been made proximate to the proceedings for inspection when also the petitioner has acceded to the position that there has been suppression of sales - Accepting the argument of the petitioner would tantamount to a situation wherein a delinquent assessee, one who has omitted to file a return of monthly turnover but has filed the prescribed return reflecting taxable sales, is allowed the benefit under Section 80, of an instalment scheme. The object of Section 80 is only to benefit an assessee who has been complaint in effecting payment of the admitted tax. In this case, while the petitioner has filed returns it has not paid the tax and hence its barred from obtaining benefit under Section 80. The conclusion as aforesaid is supported by a decision of the Orissa High Court in the case of M/S. P.K. ORES PVT. LTD. @ M/S. PK MININGS PVT. LTD. VERSUS COMMISSIONER OF SALES TAX AND ANOTHER 2022 (5) TMI 1293 - ORISSA HIGH COURT where it was held that Since interest is a part of tax and such tax being belated payment in respect of self-assessment, Section 80 of the OGST Act clearly excludes grant of instalment under the present fact-situation. However, the Commissioner is not conferred with power to allow such instalment in respect of amount due as per self-assessment return(s) furnished. Section 80 empowers the Commissioner to grant permission only to the taxable person to make payment of any amount due on instalment basis, on an application filed electronically in Form GST DRC-20 as prescribed under Rule 158. Petition dismissed.

Summary

Issues Involved:
1. Non-filing of GSTR-3B returns for the period September 2018 to March 2019.
2. Admission of discrepancies and non-payment of GST.
3. Request for payment of due tax in instalments under Section 80 of the Tamil Nadu Goods and Services Tax Act, 2017.
4. Definition and scope of "return" under Section 80.
5. Rejection of instalment request and subsequent writ petition.

Summary of Judgment:

1. Non-filing of GSTR-3B Returns:
The petitioner, a company and assessee under the Tamil Nadu Goods and Services Tax Act, 2017, did not file GSTR-3B returns for the period September 2018 to March 2019.

2. Admission of Discrepancies and Non-payment of GST:
During an inspection on 11.03.2019, several discrepancies were noted, which the petitioner admitted. The petitioner acknowledged non-payment of GST for the period in question due to financial losses from the fall in coal prices and the need to sell stock at unviable prices to avoid additional charges.

3. Request for Instalments:
The petitioner requested to remit the due amounts in 24 instalments along with interest, which was rejected on 31.10.2019 by the Commissioner. The Commissioner held that the facility of instalments under Section 80 applies only to disputed tax and not admitted tax.

4. Definition and Scope of "Return" under Section 80:
The petitioner argued that GSTR-1 does not constitute a "return" and thus Section 80's exclusion should not apply. This argument was rejected based on Section 2(37) defining 'return' and the provisions from Section 37 to Section 48, which indicate that various forms, including GSTR-1, constitute returns. The court emphasized that GSTR-1 is a statutory return as per the scheme of the Act.

5. Rejection of Instalment Request and Writ Petition:
The court noted that the petitioner had filed GSTR-1 but not paid the tax, barring them from obtaining benefits under Section 80. The court referenced the Orissa High Court decision in M/s. P.K. Ores Pvt Ltd v Commissioner of Sales Tax, supporting the conclusion that the benefit under Section 80 is only for assessees compliant in paying admitted tax. Consequently, the writ petition was dismissed, and the impugned order was sustained. No costs were awarded, and the connected miscellaneous petition was closed.