Case-1-Akas Garg v. State of Madhya Pradesh-[2020] 121 taxmann.com 329-HIGH COURT OF MADHYA PRADESH
Subject-Service of Notice on E-mail ID
6.1 A bare perusal of the aforesaid provision reveals that the only mode prescribed for communicating the show-cause notice/order is by way of uploading the same on website of the revenue.
7. The State in its reply has provided no material to show that show-cause notice/orders No. 11 and 11a dated 10-6-2020 were uploaded on website of revenue. In fact, learned AAG, Shri Mody, fairly concedes that the show-cause notice/orders were communicated to petitioner by E-mail and were not uploaded on website of the revenue.
8. It is trite principle of law that when a particular procedure is prescribed to perform a particular act then all other procedures/modes except the one prescribed are excluded. This principle becomes all the more stringent when statutarily prescribed as is the case herein.
9. In view of above discussion, this Court has no manner of doubt that statutory procedure prescribed for communicating show-cause notice/order under Rule 142(1) of CGST Act having not been followed by the revenue, the impugned demand dated 18-9-2020 vide Annexure P/1 and P/2 pertaining to financial year 2018-2019 and 2019-2020 and tax period September, 2018 to March, 2019 and April, 2019 to May, 2019 respectively, deserves to be and is struck down.
10. Accordingly, instant petition stands allowed with liberty to the revenue to follow the procedure prescribed under Rule 142 of CGST Act by communicating the show-cause notice to the petitioner by appropriate mode thereafter to proceed in accordance with law.
Case-2-K.U. Niyas v. Assistant Commissioner, State Goods and Service Tax Department Perumbavoo-[2020] 120 taxmann.com 175-High Court of Kerala
Subject-Service of Notice on E-Mail ID and Common Portal
On consideration of the facts and circumstances of the case and the submissions made across the bar, I note that as per Section 169(c) and (d) of the GST Act the service of any communication to the e-mail address provided by an assessee at the time of registration, as also by making available the communication in the common portal of the department, is to be treated as an effective communication under the statute. I find, therefore, that the petitioner cannot wish away the fact that the assessment orders were brought to his notice on 25-11-2019 and 27-11-2019 respectively. Inasmuch as the returns filed by the petitioner for the period covered by the assessment orders were belated in that they were filed more than 30 days after the date of service of the orders on the petitioner via the web portal of the department, he cannot aspire for the benefit of withdrawal of the assessment orders as mandated under section 62 of the GST Act. The Writ Petition in the challenge to the assessment orders and demand notices therefore fails and is accordingly dismissed.
Case-3-Joy Mathew v. Union of India-[2020] 120 taxmann.com 344-High Court of Kerala
Subject-Withdrawal of Assessment Order under Section 62 on submission of Return
On a plain reading of Section 62(2), extracted in paragraph 18 of the writ petition which I need not reproduce it again, it is not in doubt that whenever an assessee fails to file a return an assessing officer is required to sent the assessment order in terms of provisions section 62 (1) of the Act but, there is a caveat in terms of provision under section 62 (2) where on receipt of such information, as noticed above, was received by the petitioner on 27.10 2019, petitioner filed the returns on 25-10-2019 within 30 days. There could not have been an occasion for issuing of recovery notices as assessment orders Ext.P4 were in law required be withdrawn.
There appears an apparent error and omission on the part of the revenue in not adhering to the fact referred (supra). For the reasons aforementioned impugned recovery notices Ext.P8 are set aside. Writ petition is allowed. 4th respondent is directed to look into the returns filed as evidenced from Ext.P6 and P7 and take a call on sustainability of Ext.P4. This exercise shall be undertaken after affording an opportunity of hearing to the petitioner in accordance with law.
Case-4-Mangomeadows Agricultural Pleasure Land (P.) Ltd. v. State Tax Officer-[2020] 119 taxmann.com 109 -HIGH COURT OF KERALA
Subject-Assessment under Section 62 of CGST Act, 2017
4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that as per provisions of section 62 of the SGST Act, it is only in circumstances where an assessee refuses to furnish the particulars required for an assessment under the Act, through the filing of a return within time that the proper officer has to proceed to finalise the assessment on the best of his judgment, taking into account all relevant material which is available or which he has gathered for the said purpose. Sub section (2) of section 62 indicates that even after the service of the best judgment assessment order on the assessee, if the assessee furnishes a valid return within 30 days thereafter, the assessment order passed on best judgment basis will be deemed to have been withdrawn save for the continuance of the liability to pay interest for late payment of the tax. Thus, the statutory provisions are clear with regard to the time frame within which the assessee has to file his return and pay tax based on the said returns if he wants the assessment done on best judgment basis to be cancelled.
5. In the instant case, it is not in dispute that the assessee failed to file the returns within the time normally available under the SGST Act. It is also not in dispute that it was on account of the failure of the assessee to file the returns within time that the proper officer was constrained to complete the assessment on best judgment basis. Although the petitioner has a case that the assessment on best judgment basis was itself done in an arbitrary manner and without adhering to the guidelines indicated in the section, I find that the statutory provisions enable the assessee, who is aggrieved by the assessment order passed on best judgment basis, to furnish his returns within a further period of 30 days and pay tax thereon on the basis of the return filed by him, and in that event, the order of the proper officer passed on best judgment basis will stand automatically withdrawn.
6. The submission of the learned counsel for the petitioner in the instant case however is that he cannot resort to even this procedure since even if he were to file returns within the period of 30 days specified in section 62(2) of the SGST Act, he would not be able to pay the admitted tax liability on account of paucity of funds.
7. In my view, the statutory prescription of 30 days from the date of receipt of the assessment order passed under sub section (1) of section 62 has to be strictly construed against an assessee and in favour of the revenue, since this is a provision in a taxing statute that enables an assessee to get an order passed against him on best judgment basis set aside. The provision must be interpreted in the same manner as an exemption provision in a taxing statute.
This Court may not be justified in granting an extension of the period contemplated under sub section (2) of section 62, so as to enable the assessee to file a return beyond the said period for the purposes of getting the benefit of withdrawal of an assessment order passed on best judgment basis under section 62(1) of the GST Act. Under such circumstances I find that the prayer sought for in the writ petition cannot be granted. The writ petition therefore fails, and is accordingly dismissed.
