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TMI Blog2019 (12) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... he building in question. It has been further stated that the petitioner / Company is registered under the provisions of the Central Goods & Service Tax Act, 2017 (hereinafter referred as the Act of 2017) and is a taxable person under the Act of 2017. The petitioner / Company is carrying on business of renting immovable property and also provides allied services. 03. The petitioner / Company has further stated that earlier also, an order was passed in respect of recovery of service tax, dues on 03.10.2018, by respondent No.2 directing the tenants to deposit the rent with the State Exchequer, however, after recovery of entire dues along with penalty, the notice was withdrawn on 09.07.2019. 04. The petitioner / Company has further stated that respondent No.1 has again issued a notice to the tenants of the petitioner / Company under Section 79 (1)(c) of the Act of 2017 initiating recovery against them in respect of a sum of Rs. 44,43,804/- on account of tax, cess, interest etc. payable under the provisions of Section 79 of the Act of 2017. The petitioner / Company has submitted a reply on 15.07.2019 and it's grievance is that the notice / order dated 08.07.2019 is per se illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment Exchequer and the total tax liability worked out was Rs. 44,43,804/- + interest upto 02/2019 amounting to Rs. 5,70,546/-. As the tax dues was not paid and no reply was filed, the Department has left with no other option except to recover the GST arrears under Section 79 of the Act of 2017. 12. It has been further stated that the petitioner failed to file mandatory GSTR-1 for the period w.e.f. 07/2017 to 03/2018 and for the period w.e.f. 06/2018 to 07/2019. It has also been stated that no GSTR-3B has been filed from the beginning of the GST regime i.e. w.e.f. 07/2017 to 07/2019. The respondents have stated that the petitioner / Company is a willful defaulter, and therefore, the provision of the Act of 2017 were made applicable, as provided under Section 79, the recovery has been initiated. 13. It has been reiterated that the Range Officer, CGST and Central Excise, Range - V, Division - 5, Indore vide letter dated 19.07.2018 has requested the petitioner to file GSTR-3B and to deposit the dues, but no reply was filed by the petitioner / Company to the aforesaid letter. The respondents have stated that the petitioner should have deposited the GST along with interest for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of Service Tax was ultimately recovered only after invoking the provision as contained under Section 87 (4) of the Service Tax Act, 1994. This itself established that the petitioner is a chronic defaulter. 17. The respondents have further stated that they have issued notice under Section 79 (1)(c) of the Act of 2017 to four tenants only and petitioner instead of depositing GST dues, served a legal notice to the Department, which was properly replied by the Department on 30.07.2019. 18. The respondents have further stated that the petitioner, right from the day one, has not filed a single GSTR-3B Return nor GSTR-1 for the period w.e.f. 07/2017 to 03/2018 (has filed GSTR-1 only for the period 04/2018 to 05/2019), and therefore, the respondents were left with no other choice except to recover the amount of GST by invoking Section 79 (1)(c) of the Act of 2017. 19. It has also been argued by learned counsel for the Excise Department that the petitioner's main object of filing the present writ petition is to frustrate the recovery of dues payable to the Government. He has also stated, while arguing the matter, that the petitioner / Company is a defaulter in respect of financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed transaction value shown in GSTR-1. 24. The respondents have stated that the moment the clients have been issued invoices for providing taxable services and charged the GST also, the tenants are entitled to avail the ITC under Section 2 (62) of the Act of 2017 and in the present circumstances, in which the petitioner failed to deposit the GST for the period w.e.f. April, 2018 to May, 2019, the credit availed by the tenant on the basis of invoices issued by the petitioner also became invalid / ineligible despite no fault on their part. 25. The respondents have also stated in the additional reply that since the petitioner was failed to file GSTR-3B for the period w.e.f. 07/2017 to 05/2019 and failed to deposit the self assessed legitimate tax to the government account, the Department was left with no other choice except to invoke the provision of Section 79 (1)(c) of the Act of 2017. The respondents have stated that they have erroneously mentioned Section 79 instead of Section 37 of the Act of 2017, however, mere quoting of wrong provision of law is not going to make any difference and a prayer has been made for dismissal of the writ petition. 26. Heard learned counsel for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omission therein, rectify such error or omission in such manner as may be prescribed, and shall pay the tax and interest, if any, in case there is a short payment of tax on account of such error or omission, in the return to be furnished for such tax period: Provided that no rectification of error or omission in respect of the details furnished under sub-section (1) shall be allowed after furnishing of the return under section 39 for the month of September following the end of the financial year to which such details pertain, or furnishing of the relevant annual return, whichever is earlier. Explanation.--For the purposes of this Chapter, the expression "details of outward supplies" shall include details of invoices, debit notes, credit notes and revised invoices issued in relation to outward supplies made during any tax period. Section 79 (1)(c) of the Act of 2017 (c)(i) the proper officer may, by a notice in writing, require any other person from whom money is due or may become due to such person or who holds or may subsequently hold money for or on account of such person, to pay to the Government either forthwith upon the money becoming due or being held, or within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section shall be deemed to require the person on whom the notice has been served to pay to the Government any such money or part thereof; Rule 61 Sub-rule (3) of the GST Rules; Every registered person furnishing the return under subrule (1) shall, subject to the provisions of section 49, discharge his liability towards tax, interest, penalty, fees or any other amount payable under the Act or the provisions of this Chapter by debiting the electronic cash ledger or electronic credit ledger and include the details in Part B of the return in FORM GSTR-3." 28. The undisputed facts also reveal that the petitioner has filed GSTR-1 Return under Section 37 of the Act of 2017, however, the petitioner has not filed GSTR-3B Returns, which are to be paid on GST portal based on self assessed transaction value shown in GSTR-1 Returns by the petitioner. There are twin effect of such non-filing of GSTR-3B Return, first is that no revenue is actually transferred to the Government and on the other hand, the persons / tenants, to whom the petitioner has issued invoices, would avail GST credit. GSTR-1 Returns are being filed in accordance with Rule 59 (1) of GST Rules and GSTR-3B Returns are being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) for sub-rule (5), the following sub-rule shall be sustituted, with effect from the Ist July, 2017 namely:- (5) Where the time limit for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, the Commissioner may, by notification, [specify the manner and conditions subject to which the]38 return shall be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner. Provided that where a return in FORM GSTR-3B is required to be furnished by a person referred to in sub-rule (1) then such person shall not be required to furnish the return in FORM GSTR-3. (b) sub-rule (6) shall be omitted with effect from the 1st July, 2017. Thus, the issue stands concluded and it was mandatory to file GSTR-3B Returns. Photocopy of the gazette notification is enclosed herewith." 31. The aforesaid statutory provision of law makes it very clear that it was mandatory for the petitioner to file GSTR-3B Return. Not only this, bare perusal of the statutory provision as contained under Section 79 of the Act of 2017 and procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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