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TMI Blog2022 (11) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government, the writ petition is disposed of with a direction to the appellate authority to examine whether in the given facts and circumstances of the case, the petitioner can be extended benefits of amendment made in Section 50 of the Act or not. It is made clear that this Court has only examined the retrospectively applicability of amendment in Section 50 of the Act, 2017 and whether the petitioner can take its advantage or not to over come the rider of Section 107(6) which is a condition precedent for maintaining the Appeal under GST Act 2017, it will be decided by the appellate authority in accordance with law after giving opportunity of hearing to the petitioner. The matter is remitted back to the appellate authority to decide the appeal of the petitioner afresh after examining the effect of the amendment in Section 50 of the Act, 2017 within four months from the date of receipt of copy of order passed by this Court - the instant writ petition is partly allowed. - WPT No. 100 of 2019 - - - Dated:- 31-10-2022 - Hon'ble Shri Justice Narendra Kumar Vyas For the Petitioner : Mr. Rajeev Shrivastava, Senior Advocate with Mr. Sourabh Sahu, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 to September 2017 and demanded interest of Rs. 73,52,955/- (GST Rs. 41,490/-, SGST Rs. 41,490/- IGST Rs. 72,69,975/-). The petitioner preferred an appeal against the same which has been dismissed on the count that the petitioner has not complied with the provision of sub-section 6 of Section 107 of the Act, 2017. Though the order impugned is liable under Section 109 of the Act, 2017, respondent No. 2 has informed the petitioner that no appellate tribunal has been constituted and as soon as it will be constituted, the same shall be informed to the petitioner. It has been further contended that on one hand, there is no authority to hear the appeal against the impugned orders and on the other hand, respondent No. 5 is issuing notice to the petitioner to deposit the amount assigned by the impugned order. In view of aforesaid facts and circumstances of the case, the petitioner has filed the present petition claiming following reliefs:- (i) This Hon'ble Court may kindly be pleased to quash impugned order dated 03.08.2018 and the demand notice dated 16.05.2018. (ii) This Hon'ble Court be pleased to quash the GST DRC-13 in pursuance of the order dated 03.08.2018 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as input credit as on 31.12.2017 i.e. to the tune of Rs. 8,58,92,248/. The petitioner also stated that whenever the department will provide any mechanism to correct the GSTR 3B, the petitioner would correct and rectify the calculation and if no such window is made available, the same will be done in the annual return. 6.He would further submit that in spite of letter dated 09.04.2018, the respondents failed to provide any window or mechanism for correction in form GSTR 3B. However, the petitioner had already mentioned in the GST annual return for the month of July 2017 to September 2017 submitted in the return filed on March, 2018 regarding intention to correct the return. He would further submit that the annual return of the petitioner is due to be filed on 31st August, 2019 though the petitioner had corrected the return to the best of his understanding as there is no clear provision or mechanism provided by the respondents for correction of the return, respondent No. 4 issued a notice to the petitioner in GSTASMT 10 on 30.05.2018 seeking his explanation with regard to difference in GSTR 1 and GSTR 3B for the period of July, 2017 to December, 2017. The petitioner has submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levied on certain goods. The relevant extract of the said schedule as referred to above issued by the council, the said schedule has also prescribed the rate on the goods covered under Chapter 23 and would pray for quashing of the impugned orders Annexure P/1 P/2. 9.Learned Senior Advocate has also filed the written submission and referred to the judgment rendered by Hon ble the Supreme Court in case of Hansraj Son Vs. State of Jammu Kashmir others (2002) 6 SCC 227 Commissioner of Central Excise, Meerut Vs. Kisan Sahkari Chinni Mills Ltd. (2001) 6 SCC 697 . 10.The State has filed its return contending that there is certain specific provision which has been provided for furnishing information by the tax payers. Section 39 of the Act, 2017 provides for furnishing of returns wherein the liability was fixed on the registered dealer to furnish in such form and in the manner as may be prescribed a return electronically of inward and outward supplies of goods or services or both i.e. the details of input tax credit availed, tax payable, tax paid and such other particulars as may be prescribed on or before 20th day of the month succeeding such calendar month or part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id, levy the interest at such rate not exceeding 18%. In the present case, the interest at the rate of 18% was levied. 13.It has been further contended that the mechanism of utilization of input tax credit is governed by Section 41 of the GST Act, wherein it was stated that every registered person shall, subject to such conditions and restrictions as may be prescribed, be entitled to take credit of eligibly input tax, as self assessed, in his return and such amount shall be credited on a provisional basis to his electronic credit ledger. In view of the submissions made hereinabove, it is submitted that the impugned demand notices are just, proper and legal and do not suffer from any illegality or infirmity. Hence, it is prayed that the present petition being devoid of merit and substances and accordingly, the same deserves to be dismissed. 14.I have heard learned counsel for the parties and perused the documents appended there to with utmost satisfaction. 15.During pendency of the writ petition, the Government of India vide its Gazette notification dated 28.03.2021 has amended Section 50 of the Central Goods and Service Tax Act, 2017 and proviso has been inserted which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encement of any proceedings under section 73 or section 74 in respect of the said period, shall be payable on that portion of the tax which is paid by debiting the electronic cash ledger. 19.This Court has to see whether the amendment has retrospectively application or not? 20.Before deciding the issue posed by this Court, it is expedient for this Court to examine to understand the events took place before amendment was made by the Central Government. This amendment was made in pursuance of 39th GST Council meeting held on 21.06.2019 which has recommended to amend Section 50 vide Section 100 of Finance (No. 2) Act, 2019 and to provide for charging interest on net cash liability and the Council in its meeting on 14.03.2020 recommended charging of interest on net cash tax liability with effect from 01.07.2017 with a retrospective amendment of the Act from the aforesaid date. On 14.03.2020, the Council issued a press release wherein, under the head 'Measures for trade facilitation', it was stipulated categorically that interest for delay in payment of GST would be charged only on net cash tax liability with effect from 01.07.2017 and that the proviso to Section 50 would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was made to amend Section 50 vide Section 100 of Finance (No.2) Act, 2019 to provide for charging interest on net cash liability (iii) the Council in its meeting on 14.03.2020 recommending charging of interest on net cash tax liability with effect from 01.07.2017 and accordingly, retrospective amendment of the Act from the aforesaid date (iv) the press release of the Council post the 39th meeting also dated 14.03.2020 allaying apprehensions of the tax payers that the amendment of Section 50 would be prospective, setting out clearly as a trade facilitation measure, the assurance that the insertion of the proviso would be retrospective, applicable with effect from 01.07.2017 (v) the fact that close on the heels of Notification No.63 of 2020 dated 25.08.2020 stipulating the effective date as 01.09.2020, the CBIC issued a press release assuaging apprehensions by stating that the prospective notification was only on account of technical limitations. 29. The Board has, in my view, extended a waiver of recovery for the past period in line with the decisions of the Council (vi) Notification dated 18.09.2020, that cemented the long line of assurances of the GST Council and the Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able person registered as an Input Service Distributor shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, within thirteen days after the end of such month. (5) Every registered non-resident taxable person shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, within twenty days after the end of a calendar month or within seven days after the last day of the period of registration specified under sub-section (1) of section 27, whichever is earlier. (6) The Commissioner may, for reasons to be recorded in writing, by notification, extend the time limit for furnishing the returns under this section for such class of registered persons as may be specified therein: Provided that any extension of time limit notified by the Commissioner of State tax or Union territory tax shall be deemed to be notified by the Commissioner. (7) Every registered person, who is required to furnish a return under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (5), shall pay to the Government the tax due as per such return not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the electronic cash ledger, as such, the amendments are having retrospectively applicability effect, as such, in view of the amendment made by the Central Government, the writ petition is disposed of with a direction to the appellate authority to examine whether in the given facts and circumstances of the case, the petitioner can be extended benefits of amendment made in Section 50 of the Income Tax Act or not. It is made clear that this Court has only examined the retrospectively applicability of amendment in Section 50 of the Act, 2017 and whether the petitioner can take its advantage or not to over come the rider of Section 107(6) which is a condition precedent for maintaining the Appeal under GST Act 2017 , it will be decided by the appellate authority in accordance with law after giving opportunity of hearing to the petitioner. The impugned order dated 11.09.2018 (Annexure P/1) is set aside and the matter is remitted back to the appellate authority to decide the appeal of the petitioner afresh after examining the effect of the amendment in Section 50 of the Act, 2017 within four months from the date of receipt of copy of order passed by this Court. 25.In view of the above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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