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TMI Blog2025 (2) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... More or less an identical issue was considered by this court in Ankit Kumar Agarwal, Proprietor of business namely Ambika Trading Company v. The Assistant Commissioner of State Tax, Taltala Charge & Ors. [2024 (5) TMI 1188 - CALCUTTA HIGH COURT] - After considering the facts of the said case, the court held that if GSTR-9 which was filed within the time permitted is not considered, the assessee's right would be seriously prejudiced. It is no doubt true that in the said decision which was held that the decision should not be treated as a precedent. Nonetheless, the court considered the effect of GSTR-9 which being an annual return which could be filed within the extended period of limitation on account of various notifications issued by the Government. The adjudicating authority ought to have considered the effect of GSTR-9 and the particulars furnished therein rather than to say that what was claimed in the annual return was not reflected in the return filed under GSTR-3B. This would be the proper manner in which the case had to be dealt with otherwise the purpose of filing an annual return in terms of Section 44(1) of the Act read with Rule 80 would become redundant. Conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utionality of the Rule 61 of the WBGST Rules, 2017 and the court may test the correctness of the adjudication order passed by the respondent no.2 dated 5.6.2023 in this appeal. 8. Pursuant to directions issued earlier, the appropriate authority of the respondent have filed their affidavit which was taken on record. 9. We have elaborately heard the learned advocate appearing for the appellant and the learned senior advocate appearing for the State. 10. Initially, a notice in ASMT-10 was issued on 21.6.2022 pointing out certain discrepancies in the returns filed by the appellant for the financial year 2017-18 and the appellant was directed to pay tax, interest and any other amount arising from such discrepancies and inform the same or furnish an explanation for the discrepancy in FORM GST ASMT-11 by 21.7.2022. In continuation of the said notice an attachment to the summary was sent to the appellant dated 5.6.2023 which was impugned in the writ petition giving the details of the discrepancy detected during scrutiny involving short payment of taxes, excess claim of ITC, ITC reversible if availed, ITC payable etc. The appellant furnished their reply on 20th July, 2022 and uploaded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onthly return, the time limit for filing the same was never notified or in other words the said FORM never stood activated and the intending taxpayer could not have filed the FORM in GSTR-3 at the relevant time. 20. In this regard, Notification No. 12 of 2019-CT dated 7th March, 2019 and Notification No. 28 of 2019-CT dated 28th June, 2019 were referred to. 21. To test the correctness of the submissions we have gone through the statutory provisions. Section 39 deals with furnishing of returns and such return has to be furnished electronically in such form and manner, within such time as may be prescribed. 22. The Rule which was invoked at the relevant point of time was Rule 61 and under sub-rule (1) the return which was required to be filed under Section 39(1) was the return in FORM GSTR-3. 23. As could be seen from the Notification No. 12 of 2019-CT dated 7th March, 2019 and Notification No. 28 of 2019-CT dated 28th June, 2019 the time limit for furnishing details of the return under sub-section (1) of Section 39 for the months of July, 2019 to September, 2019 was to be subsequently notified in the Official Gazette. 24. However, this was not notified and once again by the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this court in Ankit Kumar Agarwal, Proprietor of business namely Ambika Trading Company v. The Assistant Commissioner of State Tax, Taltala Charge & Ors. in MAT 939 of 2024 dated 21.5.2024. 32. After considering the facts of the said case, the court held that if GSTR-9 which was filed within the time permitted is not considered, the assessee's right would be seriously prejudiced. It is no doubt true that in the said decision which was held that the decision should not be treated as a precedent. Nonetheless, the court considered the effect of GSTR-9 which being an annual return which could be filed within the extended period of limitation on account of various notifications issued by the Government. 33. In Sri Shanmuga Hardwares Electricals v. State Tax Officer in [2024] 159 taxmann.com 756 (Madras) the learned Single Bench took into consideration the submission of the assessee that he is eligible for ITC by referring to the GSTR-2A and GSTR-9 returns and, therefore, the assessing officer was directed to examine those returns regardless the fact that the claim did not reflect in the GSTR-3B. 34. In our view, the adjudicating authority ought to have considered the effect of GSTR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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