Sarath Chowdary Mullapud Vs Assistant Commissioner State Tax (Andhra Pradesh High Court)
The petitioner, a registered dealer under the GST Act bearing GSTIN No. 37AADFI7341D1ZK, failed to file the GSTR-3B return for the tax period of November 2022. Consequently, the first respondent issued a notice under Section 46 of the GST Act. As the petitioner did not respond, the respondent passed a best judgment assessment order dated 19.01.2023 under Section 62 of the GST Act.
The petitioner contended that he subsequently filed the GSTR-3B return on 17.02.2023 after remitting the applicable late fee and interest. It was argued that, once a valid return is furnished along with the prescribed late fee and interest, the assessment order passed under Section 62 is deemed to have been withdrawn in terms of Section 62(2) of the GST Act. Therefore, the respondent authorities could not insist upon payment of the tax demanded under the assessment order dated 19.01.2023.
The learned Government Pleader for Commercial Tax, on instructions, acknowledged that the petitioner had filed the return for the disputed tax period along with the applicable late fee and interest and submitted that appropriate orders may be passed.
The High Court referred to Section 62 of the GST Act, which empowers the Proper Officer to make a best judgment assessment where a registered person fails to furnish returns. The Court also referred to Section 62(2), which provides that where a registered person furnishes a valid return within sixty days of service of the assessment order, the assessment order shall be deemed to have been withdrawn, while the liability to pay interest under Section 50(1) and late fee under Section 47 continues.
The Court observed that it was undisputed that the petitioner had filed the GSTR-3B return for November 2022 on 17.02.2023 along with the requisite late fee and interest after the assessment order had been passed. In view of Section 62(2), the assessment order dated 19.01.2023 stood deemed to have been withdrawn.
Accordingly, the High Court held that the assessment order dated 19.01.2023 for the tax period of November 2022 was deemed to have been withdrawn and set it aside. The writ petition was allowed, with no order as to costs. All pending applications, if any, were directed to stand closed.
FULL TEXT OF THE JUDGMENT/ORDER OF ANDHRA PRADESH HIGH COURT
1. The petitioner is a registered dealer under GST Act vide GSTIN No.37AADFI7341D1ZK on the rolls of State Tax Authorities. The petitioner did not file GSTR-3B return for the period November, 2022. The 1st respondent issued notice under Section 46 of the GST Act and despite the same, the petitioner did not turn up. In those circumstances, the 1st respondent has passed assessment order dt.19.01.2023 by exercising power under Section 62 of the said Act.
2. It is the case of the petitioner that he filed GSTR-3B return on 17.02.2023 by remitting late fee and interest. The counsel for the petitioner would further submit that despite filing return along with late fee and interest, the respondent authorities are insisting to pay the tax demanded through order passed under Section 62 of the Act. He would further submit that once the return is filed, the order passed under Section 62 would be deemed to have been withdrawn as per Section 62 upon payment of necessary late fee and interest. He would further submit that, in view of the fact that the return has been already filed, the respondent authorities cannot insist to pay the tax demanded under the Impugned Assessment Order dt.19.01.2023.
3. Sri M.V. Krishna Rao, learned Government Pleader for Commercial Tax, on instructions would submit that the petitioner has filed return for the tax period under dispute along with late fee and interest. He would further submit that appropriate orders be passed in the instant writ petition.
4. As per Section 62 of GST Act the Proper Officer may proceed to assess the tax liability of the registered person to the best of his judgment taking into account all the relevant material, which is available or which he has gathered and issue an Assessment Order, within a period of five (05) years from the date specified under Section 44 for furnishing of annual return for the financial year to which the tax not paid relates to.
5. Further as per Section 62(2), if the registered person furnishes valid return within sixty (60) days of service of Assessment Order under sub section (1), the said Assessment Order shall be deemed to have been withdrawn, but the liability for payment of interest under sub section (1) of section 50 or for payment of late fee under section 47 shall continue.
6. In the case on hand, subsequent to the passing of assessment order under Section 62, the petitioner had filed return for the period under dispute along with late fee and interest on 17.02.2023 and the same is not disputed by the learned Government Pleader for Commercial Tax. In such circumstances, the Assessment Order dt.19.01.2023 would be deemed to have been withdrawn in view of the fact that the petitioner had filed relevant GSTR 3B return for the month of November, 2022.
7. For the foregoing reasons, the assessment order dated 19.01.2023 passed by the 1st respondent for the tax period November, 2022 is deemed to have been withdrawn and the same is set aside.
8. Accordingly, the Writ Petition is allowed. There shall be no order as to costs.
9. As a sequel, pending applications, if any shall stand closed.
