Case Law Details
Krishna Steel Rolling Mills Vs Deputy Commissioner Of State Tax (Arrears Recovery) (Kerala High Court)
The Hon’ble Kerala High Court in the case of M/s Krishna Steel Rolling Mills v. Deputy Commissioner of State Tax [WP(C) NO. 15991 of 2023 dated September 15, 2023] dismissed the writ petition, while allowing the assessee to pay in instalments of the arrears of tax and further directed the Commissioner to decide the application within 7 days from the day the assessee approached the Commissioner.
Facts:
M/s Krishna Steel Rolling Mills (“the Petitioner”) filed GSTR-1 but failed to file the return in GSTR-3B. Consequently, the assessing officer issued a recovery notice amounting to more than five Crores in outstanding tax.
The Petitioner contended that the Commissioner of State Tax (“the Respondent”) had miscalculated the tax, leading to an assessment order (“the Impugned Order”) for recovery of tax dated November 28, 2019.
However, the Petitioner failed to challenge the Impugned Order through statutory appeals. Aggrieved by the Impugned Order, the Petitioner approached the Court through a writ petition almost four years after the Impugned Order.
Issue:
Whether the writ petition is maintainable when filed almost four years after the issuance of the Impugned Order?
Held:
The Hon’ble Kerala High Court in WP(C) NO. 15991 of 2023 held as under:
- Held that, the writ petition is not maintainable as the Petitioner had not initiated any proceeding within four years and directly approached this Court without availing alternate remedy of filling statutory appeal.
- Observed that, under Section 80 of the Central Goods and Service Act, 2017 (“the CGST Act”), the Commissioner has the power to grant up to 12 installments for the payment of arrears of tax.
- Directed that, the Petitioner may approach the Respondent within 7 days from the pronouncement of the order for payment of arrears of tax in the form of installments and the Respondent should decide it within 7 days.
- Dismissed the writ petition.
Relevant Provision:
Section 80 of the CGST Act:
Payment of tax and other amount in instalments.
On an application filed by a taxable person, the Commissioner may, for reasons to be recorded in writing, extend the time for payment or allow payment of any amount due under this Act, other than the amount due as per the liability self-assessed in any return, by such person in monthly instalments not exceeding twenty-four, subject to payment of interest under section 50 and subject to such conditions and limitations as may be prescribed:
Provided that where there is default in payment of any one instalment on its due date, the whole outstanding balance payable on such date shall become due and payable forthwith and shall, without any further notice being served on the person, be liable for recovery.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
1. The writ petition is filed under Article 226 of the Constitution of India for the following reliefs;
“i. To issue a writ, direction, or order in the nature of mandamus commanding the Respondent to stay and revoke the recovery proceedings initiated on the date of 06th May 2023 until a proper hearing is provided to the petitioner by the Respondent
ii. To issue a writ, direction, or order in the nature of mandamus commanding the Respondent to desist from unilaterally and arbitrarily deciding the Tax liabilities without considering the facts and circumstances of the matter.
iii. To issue a writ, direction, or order in the nature of mandamus to the Respondent for the provision of a proper hearing and not to interpret the matter in a literal sense.
iv To issue a writ, direction, or order in the nature of mandamus to the Respondent for the provision of a window for the payment of tax if further assessed after the hearing with the Respondent in an installment manner as due to the hectic and colossal financial crunch.
v To issue a writ, direction, or order in the nature of mandamus or any other writ which this Honourable Court may deem fit and necessary in the circumstances of this matter for the effective implementation of Justice.”
2. The petitioner after filing GSTR-1 did not file the return in GSTR-3B. It appears that the petitioner was assessed to the GST as per Exts.P1, P1A, P1B, P1C and P1D for a total outstanding amount of more than rupees five Crores. The learned Counsel for the petitioner submits that the assessing authority has not calculated the tax properly and on the basis of wrong calculation, the assessment orders has been passed in respect of which recovery notices Exts. P1, P1A, P1B, P1C and P1D have been issued.
3. The assessment order has been passed on 28.11.2019. The petitioner has not challenged the assessment order by filing statutory appeals. The petitioner has approached this Court by filing the present writ petition after almost four years from the date of assessment order. This Court does not find this writ petition as maintainable against the assessment order that was passed in 2019.
4. In view thereof, the writ petition is dismissed. At this stage the learned Counsel for the petitioner submits that this Court may grant some installments for making payment of the arrears of tax.
5. Under Section 80 of the CGST Act, there is power vested in the Commissioner to grant upto 12 installments for the payment of arrears of tax. If the petitioner wants to deposit the tax in installments, the petitioner may approach the Commissioner within a period of seven days from today, and then the Commissioner should decide the application within another period of seven days thereafter for granting installments for payment of arrears of tax as assessed by the assessing authority.
6. With the aforesaid directions, the writ petition is dismissed as above. However, interim order if any, shall continue till a decision is taken by the Commissioner as directed above.
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