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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 ..... rn - Not only this, bare perusal of the statutory provision as contained under Section 79 of the Act of 2017 and procedure adopted by the respondents reveal that the procedure contemplated under Chapter 15 of the Act of 2017 has been followed as Section 79 (1)(c) falls in Chapter 15 of the Act of 2017 and the same has rightly been invoked. The petitioner has contended that in absence of tax determination under Section 73, no recovery could have been ordered in the manner and method it has been done in the present case - This Court is of the considered opinion that the tax determination has already been done in the present case, as the petitioner itself has quantified its tax liability under the GSTR-1 Returns. The petitioner's contention that in absence of determination of tax under Section 73 no recovery can be made, is unfounded and in fact Section 73 has got no application in the facts and circumstances of the present case. In the present case, there is no necessity to determine the taxable person, as the liability has been self assessed by the petitioner itself. So far as the determination of taxable person in the present case is concerned, the case of revenue rests o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire dues along with penalty, the notice was withdrawn on 09.07.2019. 04.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 ₹ 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 and has been issued contrary to the statutory provisions as contained under the Act of 2017. 05. The petitioner / Company has raised various grounds before this Court and it has been stated that respondent No.2 has not followed the prescribed procedure relating to demand and recovery, as provided under the Act of 2017. It has also been contended that without determination of tax payable by taxable person, no recovery could have been initiated under Section 79 (1)(c) of the Act of 2017. 06. It has also been argued that in absence of determination of tax under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 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 period w.e.f. April, 2018 to May, 2019, as the tax liability was worked out by himself (self assessed) shown as GSTR-1, failing which, the action was initiated by the Department to recover the dues under Section 79 (1)(c) of the Act of 2017. 14. The respondents have also filed a detailed para-wise reply to the writ petition and it has been stated that the petitioner, on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 financial transaction and the property of the petitioner / Company is likely to be subjected for recovery of dues under the provision of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2000. The sole object of the present writ petition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants 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 parties at length and perused the record. The matter is being disposed of at motion hearing stage itself with the consent of the parties. 27. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice was served on him, nor is the money demanded or any part thereof, likely to become due to the said person or be held for or on account of such person, nothing contained in this 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2298147 413666 December, 2018 20.01.2019 21.01.2019 1899906 341984 January, 2019 20.02.2019 21.02.2019 1899772 341958 February, 2019 20.03.2019 21.03.2019 1908818 343588 21740328 3913258 Balance amount Amt. deposited Date of Deposited Total Days Interest @ 24% Progressive interest GST Paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3569670 0 0 99 22260 554506 Nil 3913258 0 0 71 16040 570546 30. The petitioner has certainly not paid the GST. It is noteworthy to mention that GSTR-1 is declaration of tax liability and GSTR-3B is evidence of actual payment. The petitioner has stated that GSTR-1 cannot be termed or classified as self assessed liability, it is only a declaration made for limited purpose. The said issued stands concluded on account of notification dated 09.10.2019 bearing No.49/2019, wherein an amendment has been made in Rule 61 of the GST Rules with retrospective effect and filing of GSTR-3B has been made compulsory. The operative portion of the notification dated 09.10.2019 reads as under:- 4. In the said Rules, in rule 61,- (a) for sub-rule (5), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o application in the facts and circumstances of the present case. 34. It has also been contended by the petitioner that the order / notice dated 08.07.2019 is violative of Section 78 of the Act of 2017. The petitioner's contention is certainly erroneous, as there is no dispute about the quantum of tax liability, action is not being taken in furtherance of any order (adjudicating order). Revenue is simply pressing upon for actual payment as being declared by the petitioner itself under GSTR-1. The petitioner has to pay the tax liability assessed by himself by filing appropriate form / challan , which he has not complied with, and thus, the claim of the petitioner that Section 79 of the Act of 2017 can be invoked only after Section 78 of the Act of 2017, is erroneous. 35. In the present case, there is no necessity to determine the taxable person, as the liability has been self assessed by the petitioner itself. So far as the determination of taxable person in the present case is concerned, the case of revenue rests on the GSTR declaration made by the petitioner itself, and therefore, there was no need of determination of taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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