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TMI Blog2020 (10) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... ice to return defaulter issued u/s 46 for not filing return in form GSTR-3A dated 02.01.2020 and show cause notice dated 04.02.2020 issued for cancellation of registration nor filed pending returns by the proper officer - where a registered person fails to furnish the returns u/s 39 or 45 of the Act, even after the service of Notice u/s 46, the proper officer is required to pass an order assessing the tax liability of the said person to the best of his judgment taking into account all the relevant material which is available or which he has gathered, within a period of five years from the date of filing annual return for the financial year to which the tax not paid relates. The contention made in the grounds of appeal of the appellant is tenable and the order dated 21.07.2020 determining the liability of the appellant is not legally correct and proper. The appellant has filed returns upto date of cancellation of registration hence, I find that the appellant has substantially complied with the above said provisions of the CGST Act/Rules, 2017 in the instant case. At this stage the appellate authority is in no position to decide the issue on merit on the basis of available records pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter vide order ZA080720067690H dated 21.07.2020. 3. Being aggrieved with the impugned order as mentioned in Table No. 1, the appellant has filed the appeal prescribed under Section 107(1) of CGST Act, 2017 as mentioned below: S. No Name of appellant Date of Order Date of filing appeal Delay in filing appeal (1) (2) (3) (4) (5) 1 Shri Ranveer Singh, Gram Post Chhapoli, The. Udaipurwati, Jhunjhunu (Rajasthan)-333301 GSTIN 08BBPPS3145H1Z9 ZA080720067690H dated 21.07.2020 01.09.2021 10 Months 11 days The appellant has filed appeal in terms of Section 107(1) of the CGST Act mainly on the grounds that: a). The assessing officer had erred in calculating the tax payable of ₹ 79,720/-- CGST and ₹ 79720/- interest in the cancellation order. b). The assessing officer had erred in assessing the demand in the cancellation of registration order and not passing the order under section 62. c). The assessing officer had passed the demand order on adhoc basis which is baseless and it should be set aside. d). The basis of assessment of the demand is unlawful, baseless, arbitrary and without authority of law, therefore demand should be quashed and GSTIN should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a further period of one month provided that the appellant was prevented by sufficient cause from presenting the appeal is shown and the delay of more than one month is not condonable under the provisions of sub section (4) of Section 107 of the Central Goods and Service Tax Act, 2017. 8. I find that Hon'ble Supreme Court of India while disposing off Suo Motu Writ Petition (Civil) No.3 of 2020 on 08.03.2021 passed the order as under: "Due to the onset of Covid-19 pandemic, this court took suo motu cognizance of the situation arising from difficulties that might be faced by the litigants across the country in filing petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State). By an order dated 23.03.2020 this court extended the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. " Further, the Hon'ble Supreme Court in continuation of the Order dated 08.03.2021 & 27.04.2021 in the case of Re Cognizance of Extension of Limitation vide its Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 04.02.2020 was issued for cancellation of registration in terms of clause (b) or clause (c) of sub-section (2) of section 29 of the CGST Act, 2017 by the proper office as the appellant had not filed returns for a continuous period of 6 months. Further, the proper officer vide order dated 21.07.2020 cancelled the registration effectively from 21.07.2020 and determined the liability of CGST ₹ 79,720/- & Interest ₹ 79,720/- therunder. The appellant has contended the issue on the ground that the demand assessed by the proper officer is on adhoc basis and is purely baseless as the appellant was not at all engaged in any business during the period. The adjudicating authority has determined the tax liability without passing any order of assessment. There is no provision to determine the tax in cancellation order itself. There is a provision in CGST Act for making assessment of return defaulters u/s 62. The Adjudicating Authority have not followed the procedure laid down in Section 62 and CGST Rules 100, therefore violated the spirit and provisions of law, therefore the order so passed is without authority of law and liable to be quashed. In the cancellation order tax liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due taking into account inward and outward supplies of goods or services or both, input tax credit availed, tax payable and such other particulars during a month, in such form and manner, and within such time, as may be prescribed: Provided further that every registered person furnishing return under sub-section (2) shall pay to the Government, the tax due taking into account turnover in the State or Union territory, inward supplies of goods or services or both, tax payable, and such other particulars during a quarter, in such form and manner, and within such time, as maybe prescribed.] (8) Every registered person who is required to furnish a return under sub-section (1) or sub-section (2) shall furnish a return for every tax period whether or not any supplies of goods or services or both have been made during such tax period. In view of the above provisions, I observe that the appellant was required to furnish his periodically returns electronically within the manner and such form by the due date as prescribed under the law. However, the appellant has failed to furnish his periodically returns within the prescribed time. The proper officer issued notice dated 04.02.2020 to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessment order within a period of five years from the date specified under section 44 for furnishing of the annual return for the financial year to which the tax not paid relates. (2) Where the registered person furnishes a valid return within thirty days of the service of the assessment order under sub-section (1), the said assessment order shall be deemed to have been withdrawn but the liability for payment of interest under sub-section (1) of section 50 or for payment of late fee under section 47 shall continue. Rule 100. Assessment in certain cases. (1) The order of assessment made under sub-section (1) of Section 62 shall be issued in Form GST ASMT-13 and a summary thereof shall be uploaded electronically in Form GST DRC-07. In view of the above stated provisions, where a registered person fails to furnish the returns u/s 39 or 45 of the Act, even after the service of Notice u/s 46, the proper officer is required to pass an order assessing the tax liability of the said person to the best of his judgment taking into account all the relevant material which is available or which he has gathered, within a period of five years from the date of filing annual return for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration : Provided also that where the registration has been cancelled with retrospective effect, the registered person shall furnish all returns relating to period from the effective date of cancellation of registration till the date of order of revocation of cancellation of registration within a period of thirty days from the date of order of revocation of cancellation of registration.] (2) (a) Where the proper officer is satisfied, for reasons to be recorded in writing, that there are sufficient grounds for revocation of cancellation of registration, he shall revoke the cancellation of registration by an order in FORM GST REG-22* within a period of thirty days from the date of the receipt of the application and communicate the same to the applicant. (b) The proper officer may, for reasons to be recorded in writing, under circumstances other than those specified in clause (a), by an order in FORM GST REG-05*, reject the application for revocation of cancellation of registration and communicate the same to the applicant. (3) The proper officer shall, before passing the order referred to in clause (b) of sub-rule (2), issue a notice in FORM GST REG-23* requiring the applicant to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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