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TMI Blog2024 (12) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... 2023, 31.12.2023 and 31.03.2024. For the year 2017-18 the period between 15.03.2020 to 28.02.2022; 2 years minus 14 days come within the period of limitation. Hence the period of 1 year, 11 months and 16 days have to be excluded for the year 2017-18, which would take the limitation period to 21.01.2025. In the financial year 2018-19, the period between 01.01.2021 and 28.02.2022 should be excluded from the three-year period commencing from the extended date of filing amended returns for that year; i.e: between 31.03.2020 to 31.12.2023. The 01 year 02 months so excluded would extend the limitation from 31.12.2023 to 28.02.2025, for the assessment year 2018-19. Likewise, for the financial year 2019-20 the extended due date of filing of return falls on 31.03.2021 and the limitation under Section 73 (10) of the GST Act extends upto 31.03.2024. The period excluded for reason of the Covid-19 pandemic, coming within the period of limitation, hence would be 11 months which would enable extension of limitation under Section 73 (10) of the GST Act from 31.03.2024 to 28.02.2025. The extended dates as per the notifications fall within the period of limitation; when the exclusion enabled by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner/s : Mr. Bijay Kumar Gupta, Advocate For the Respondent/s : Mr. Standing Counsel 11 Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate (In Civil Writ Jurisdiction Case No. 4505 of 2024) For the Petitioner/s : Dr. Alok Kumar Sinha, Advocate Mrs. Raj Rashmi Sinha, Advocate Mr. Raja Prasad, Advocate For the Respondent/s : Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate Mr. G.P.-7 (In Civil Writ Jurisdiction Case No. 4533 of 2024) For the Petitioner/s : Mr. Bijay Kumar Gupta, Advocate Mr. Ajeet Kumar Sinha, Advocate Mr. Manish Kumar, Advocate For the Respondent/s : Mr. Vikash Kumar, SC 11 Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate (In Civil Writ Jurisdiction Case No. 5233 of 2024) For the Petitioner/s : Mr. Sadashiv Tiwari, Advocate For the Respondent/s : Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate Mr. Vikash Kumar, SC 11 (In Civil Writ Jurisdiction Case No. 6831 of 2024) For the Petitioner/s : Mr. Bijay Kumar Gupta, Advocate Mr. Manish Kumar, Advocate For the Respondent/s : Mr. Vikash Kumar, SC 11 Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate. Mr. Shivadity D. Sinha, Advocate (In Civil Writ Jurisdiction Case No. 6985 of 2024) For the Petitioner/s : Mr. D.V. Pathy, Advocate Mr. Sadashiv Tiwari, Advocate Ms. Prachi Pallavi, Advocate Mr. Hiresh Karan, Advocate For the Respondent/s : Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate Mr. Abhijeet Gautam, Advocate Mr. Vikash Kumar, SC 11 (In Civil Writ Jurisdiction Case No. 7009 of 2024) For the Petitioner/s : Mr. Bijay Kumar Gupta, Advocate Mr. Manish Kumar, Advocate For the Respondent/s : Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Writ Jurisdiction Case No. 9453 of 2024) For the Petitioner/s : Mr.Brisketu Sharan Pandey, Advocate Mr. Abhishek Kumar, Advocate Mr. Madan Kumar, Advocate For the Respondent/s : Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate Mr. Vikash Kumar, SC 11 (In Civil Writ Jurisdiction Case No. 9527 of 2024) For the Petitioner/s : Mr. Bijay Kumar Gupta, Advocate Mr. Manish Kumar, Advocate Mr. Rajeev Nayan, Advocate For the Respondent/s : Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate Mr. Vikash Kumar, SC 11 (In Civil Writ Jurisdiction Case No. 9555 of 2024) For the Petitioner/s : Mr. Bijay Kumar Gupta, Advocate Mr. Abhay Kumar Singh, Advocate Mr. Manish Kumar, Advocate Mr. Rajeev Nayan, Advocate For the Respondent/s : Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate (In Civil Writ Jurisdiction Case No. 9585 of 2024) For the Petitioner/s : Mr. Bijay Kumar Gupta, Advocate Mr. Abhay Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Bijay Kumar Gupta, Advocate Mr. Manish Kumar, Advocate For the Respondent/s : Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate Mr. G.P. 7 (In Civil Writ Jurisdiction Case No. 11828 of 2024) For the Petitioner/s : Mr.Shive Kumar, Advocate For the Respondent/s : Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate Mr. G.P. 7 (In Civil Writ Jurisdiction Case No. 11833 of 2024) For the Petitioner/s : Mr.Samir Kumar, Advocate Mr. Saurav Singh, Advocate For the Respondent/s : Mr. Vikash Kumar, SC 11 Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate (In Civil Writ Jurisdiction Case No. 11860 of 2024) For the Petitioner/s : Mr.Shive Kumar, Advocate For the Respondent/s : Dr. K. N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST CX Mr. Devansh Shankar Singh, Advocate Mr. Shivadity D. Sinha, Advocate Mr. G.P. 7 (In Civil Writ Jurisdiction Case No. 11913 of 2024) For the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Raza, learned Counsel appearing for the writ petitioners, Sri. P.K. Shahi, learned Advocate General for the State and Dr. K.N. Singh, learned Additional Solicitor General for the Union of India. 4. Section 44 of the GST Act provides for filing of annual returns, which as per sub-section (1) has to be filed for every financial year, electronically, in such form and manner as may be prescribed, on or before 31st day of December following the end of such financial year. The 1st proviso also empowers the Commissioner, on the recommendations of the Council and reasons to be recorded in writing, by notification, to extend the time limit for furnishing the annual return for such class of registered persons as may be specified therein. 5. Section 73 speaks of determination of tax on specified contingencies; for reasons other than of fraud, willful-misstatement or suppression of facts. Sub-section (2) of Section 73 provides for three months notice; prior to the time provided under sub-section (10) and sub-section (3) provides for a statement containing the details of the escaped tax, erroneous refund or wrong claim of input tax, to accompany the notice. Sub-section (4) deems a statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. (Civil) No. 3 of 2023 was registered, as Re: Cognizance for Extension of Limitation. The limitation under the various enactments were suspended thus giving relief to the individuals, assessees, establishments, institutions etc., who were obliged to make statutory compliances. Eventually, the Hon ble Supreme Court by order dated 01.01.2022 disposed of the suo motu writ petition with directions, inter alia providing for exclusion of limitation for the period between 15.03.2020 to 28.02.2022, and eventually enabling a further limitation period of 90 days from 01.03.2022; providing also that if the statute provided a period greater than 90 days, the longer period would apply. We would deal with the directions of the Hon ble Supreme Court in extenso later; but for the present suffice it to observe that generally it has been recognized; going also by the directions of the Hon ble Superme Court, that the period of affliction of the pandemic, which resulted in the entire governmental machinery and the very life of the citizens itself coming to a stand-still, was between 15.03.2020 and 28.02.2022; continuing for varying periods locally after the initial lock down. 8. Even before the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The aforesaid extension was to mitigate the difficulties of the assesses; expressed by the assesses, due to the insistence for online filing of returns and the difficulties in implementation of the new regime, under the GST Act which had commenced on 01.07.2017. The due date for filing of returns under Section 44 of the GST Act, thus stood extended for the year 2017-18, 2018-19 and 2019-20 to 07.02.2020 (in the State of Bihar and otherwise to 05.02.2020) 31.12.2020 and 31.03.2021 respectively. It is with this due date in mind that we have to determine the limitation under Section 73 (10) of the GST Act; which is within three years from the due date for filing of annual returns for the financial year. The limitation period as per the due date so extended respectively fell on 07.02.2023 (in Bihar), 31.12.2023 and 31.03.2024. 11. The challenge in the above writ petitions are against Notification Nos. 13/2022-Central Tax, 9/2023-Central Tax 56/2023-Central Tax which extended the dates for issuing orders under Section 73 (10) of the GST Act. It is the contention of the petitioners that the said notifications which respectively came on 05.07.2022, 31.03.2023 and 20.12.2023, under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions for which the time limit for completion or compliance by any authority fell during the period 20.03.2020 to 30.08.2020; which Notification is produced as Annexure-P/7 in CWJC No. 6195 of 2024. Subsequently; Annexure-P/8 produced in the same writ petition, is Notification No. 55/2020 dated 27.06.2020 issued, whereby the period ending on 29.06.2020, as specified in Notification No. 35/2020 was substituted with 30.08.2020 and the extension up to 13.06.2020 was further extended to 31.08.2020. Likewise, Notification No. 14/2021 dated 01.05.2021 (produced as Annexure-P/9) provided for similar extension of time; to perform acts that were required to be performed between 15.04.2021 and 29.06.2021 up to 30.06.2021; later to which the impugned notifications were issued. 15. The impugned notifications were issued to extend the period of limitation beyond the due date for filing returns; which due dates stood extended for all the three assessment years. The compelling contention raised by the petitioners is with respect to COVID-19 pandemic having passed and the force majeure situation not having application on the respective dates of the impugned notifications; which extended the lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The notification was issued in pursuance to the decision taken by the GST Council at the 47th meeting held on 28-29 of June, 2022; which is produced as Annexure-P/12 in CWJC No. 6195 of 2024. We extract Agenda at item no. 3(xiv) which reads as under: - Agenda Item 3 (xiv): Note for extension of limitation under Section 168A of the CGST Act, 2017 7.53 The Principal Commissioner, GST Policy Wing mentioned that requests were made to extend the period of limitation under Sections 73/74 and Sections 54/55 on account of problems being faced by the taxpayers as well as tax administration in respect of demands and refunds getting time barred due to long period of lockdown/restrictions. He informed that the issue was deliberated by the Law Committee in its meeting held on 11.04.2022 and 07.05.2022. The Law Committee observed that Centre as well as State governments were working with reduced staff, along with staggered timings and exemption to certain categories of employees from attending offices, from time to time during COVID period. Further, it was a conscious policy decision not to do enforcement actions in the initial period of implementation of GST Law, thereby no action for scrutiny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion of every human endeavour including mobility, disrupting all human activities, which weighed on the GST Council and the Government on 05.07.2022, while extending the limitation period for passing orders under Section 73 (10) of the GST Act. The compelling circumstance was the pandemic period having disabled the officers from statutorily proceeding against the defaulters, which definitely is a force majeure situation. 20. The further notifications were also in the same manner and in modification of Notification No. 13 of 2022. Notification No. 09 of 2023-Central Tax was issued on 31.03.2023 extending the limitation period for the financial year 2017-18 to 31.12.2023 for the financial year 2018-19 upto 31.03.2024 and for financial year 2019-20 till 30.06.2024. The above notification did not speak of a retrospective effect having been given, especially since the period for passing the order under Section 73 (10) of the GST Act, as would be applicable based on the extended due date had not reached as yet, ie: on 31.03.2023, when the notification was brought out, for any of the subject years. The statutory period for the year 2017-18 by Notification No. 13 of 2022, which had retros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Law Committee has recommended the extension of time limit for issuance of SCN and orders. However, the time period for issuance of notices and passing orders for these financial years has already been extended considerably due to extension in due dates of filing annual returns for the said financial years. Further, for FY 2017-18, the date of passing order has already been extended till September 2023. It has been proposed to extend it further from September 2023 to December 2023. He mentioned that while the request of some of the tax administrations was to extend the time limit for a longer period, however, keeping the taxpayers' interest in mind, the Law committee has recommended an extension of only three months for these three financial years. Since all the states have agreed, the said time limits could be extended. 5.7.2 Hon'ble Member from Bihar stated that while this proposal could be considered, however, it should be decided that such an extension in timelines for these financial years under sub-section (10) of section 73 of CGST Act is being made for the last time. The Council agreed with the recommendation of the Law Committee made in agenda item 4(vii), along w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired, as per the provisions of the Central Act or the State Act, has to be construed to be a sine qua non for exercise of power by the Union or the State Government. It was found from an analysis of the findings in the judgment of the Hon ble Supreme Court that though some recommendations of the GST Council would not be binding on the Government, it cannot be laid down as a proposition that there is no requirement at all for a recommendation of the GST Council, to exercise the power. 25. We are unable to accept the findings in the judgment of the Gauhati High Court even on an interpretation of the decision of the Hon ble Supreme Court in Mohit Minerals Pvt.Ltd. (supra). As has been noticed by the learned Single Judge, the Hon ble Supreme Court has referred to the recommendations in the Constitution of India and categorised them as falling under five separate categories being; (i) the recommendation of the President for initiation of a discussion; (ii) a decision on the recommendation arrived upon with consultation; (iii) the decision making authority being obliged to submit an explanatory note on the action or inaction taken on the recommendation; (iv) unqualified recommendation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and the State Legislatures possess simultaneous power to legislate on GST. Article 246-A does not envisage a repugnancy provision to resolve the inconsistencies between the Central and the State laws on GST. The recommendations of the GST Council are the product of a collaborative dialogue involving the Union and the States. They are recommendatory in nature. To regard them as binding edicts would disrupt fiscal federalism, where both the Union and the States are conferred equal power to legislate on GST. It is not imperative that one of the federal units must always possess a higher share in the power for the federal units to make decisions. Indian federalism is a dialogue between cooperative and uncooperative federalism where the federal units are at liberty to use different means of persuasion ranging from collaboration to contestation. 171.1.3 . The Government while exercising its rule-making power under the provisions of the CGST Act and the IGST Act is bound by the recommendations of the GST Council. However, that does not mean that all the recommendations of the GST Council made by virtue of the power Article 279-A(4) are binding on the legislature's power to enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 29.08.2022, produced as Annexure-R-3/5 along with supplementary counter affidavit dated 26.10.2024 in CWJC No. 4180 of 2024. Likewise, contemporaneous to Notification No. 9/2023-Central Tax dated 31.03.2023, the State has issued S.O. 134 dated 17.05.2023 extending the limitation period for the financial years 2017-18, 2018-19 and 2019-20 under Section 73 (10) of the BGST Act to 31.12.2023, 31.03.2024 and 30.06.2024 respectively. Contemporaneous to Notification No. 56/2023-Central Tax dated 28.12.2023, the State has issued S.O. 60 dated 23.01.2024 extending the limitation for the financial year 2018-19 to 30.04.2024 and that for the financial year 2019-20 up to 31.08.2024. Hence, the limitation stands extended under both the GST enactments. 31. Be that as it may, we also specifically looked at the directions issued by the Hon ble Supreme Court in Suo motu Writ Petition No. (C) No. 3 of 2020 in Re: Cognizance For Extension Of Limitation . We extract sub-paragraph (I) of para 5, which read as under:- (I) The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 73 (10) of the GST Act from 31.03.2024 to 28.02.2025. The extended dates as per the notifications fall within the period of limitation; when the exclusion enabled by the Hon ble Supreme Court; between 15.03.2020 and 28.02.2022 is applied. 35. For the assessment year 2017-18, the expiry of limitation on 31.03.2023 as per the Hon ble Supreme Court s directions stand extended to 21.01.2025, that of 2018-19, which fell on 31.12.2023 stands extended to 28.02.2025 and that of 2019-20 falling on 31.03.2024 stands extended to 28.02.2025. None of these dates have reached and the orders impugned in these batch of cases are within the extension of limitation granted by the Hon ble Supreme Court. 36. The learned Advocate General had relied heavily on a judgment of a Division Bench of the Allahabad High Court in Writ Tax No. 1256 of 2023, titled as M/s Graziano Trasmissioni vs. Goods and Services Tax Ors. and analogous cases. Therein a Division Bench had upheld the extension made of the limitation for the years 2017-18, 2018-19 and 2019-20 by Notification No. 13/2022 and Notification No. 9/2023. We respectfully concur with the judgment of the Division Bench of the High Court of Allahaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the submission advanced by learned counsel for the petitioner that there were mere difficulties faced by the revenue authorities in conducting scrutiny and audit. The period 15.03.2020 to 28.02.2022 remains the darkest period of our recent past, arising after the second World War. No calamity of equal magnitude has disrupted human life since then. In the context of a global village, that our world has become, the pandemic COVID-19 disrupted all human activities across all continents and left no strata of the society, organisation or institution or other entity, unaffected over a long duration of time. The full impact of the COVID-19 is still to be assessed. 112. Then, directly material to our discussion before the Council it had been specifically represented to provide for suitable extensions of time keeping in mind the fact that the scrutiny and audit work with respect to Annual Returns for the F.Ys. 2017-18, 2018-19 and 2019-20 could not be done for reason of reduced working staff, staggered timings and exemptions granted to various category of employees, to attend office establishments, during the spread of the pandemic COVID-19. It was specifically included through the agenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot per se apply to an adjudication proceeding; which we are unable to accept; with all the respect at our command. 39. We are of the opinion, as expressed hereinabove, that the decision of the Hon ble Supreme Court and the direction to exclude the period between 15.03.2020 to 28.02.2022 applies across the board to the assessees and the statutory authorities; both of whom act through authorized or designated persons, who were incapacitated during the pandemic period, from satisfying the compliances as required in the statute, which obligations are not only with respect to timely filing of returns and other compliances, but also initiation and completion of proceedings by the statutory authorities. In fact, it is to be noticed that the Hon ble Supreme Court, having excluded the limitation period between 15.03.2020 till 28.02.2022, by its order dated 10.01.2022 granted further time of three months where the limitation expired during the period between 15.03.2020 to 28.02.2022 and also provided further time, if so stipulated by the statute, as per direction No. (III) in the said decision. 40. We emphasize that insofar as the three-year period; relatable to the statutory limitation, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (10) of Section 74 of the GST Act. 44. According to us, Section 73 is a stand alone provision, which can be invoked separately, not coming within the ambit of a mere scrutiny of returns, when it appears to the Proper Officer that there is any escapement of tax, erroneous refund or wrongful claim of input tax credit. True, scrutiny of returns is also a procedure which can be adopted by the Assessing Officer and any discrepancy noticed has to be informed to the assessee. If the assessee s explanation is found satisfactory, no further action is to be taken and if it is not satisfactory or an explanation is not submitted, then further proceeding has to be taken under Sections 65, 66, 67, 73 or 74. It is not the stipulation that in every proceeding under Section 73, it should be preceded by a notice in Form GST ASMT-10; when the proceeding under Section 73 is itself preceeded by a notice. The gravity of a discrepancy noticed on scrutiny of returns is a tad lesser; than, when it appears to the Proper Officer that there is an escapement of tax, erroneous refund or wrongful claim of input tax. 45. The last contention taken by some of the assessees is based on Section 75 (4) of the GST Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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