GSTR-3B Return notified to nullify Gujarat HC Judgment – SC fails to analyze this crucial aspect

GSTR-3B─Return notified  subsequent to Judgment of Gujarat HC to nullify Judgment─No analysis of this crucial aspect by the Apex Court

The Hon’ble Supreme court in the case of Union of India v. AAP And Company (2021) 36 J.K.Jain’s GST & VR 519, overruled the judgment dated 24.6.2019 of Hon’ble Gujarat HC : AAP and Co. v. Union of India &  Ors. (2019) J. K. Jain’s GST & VR 1.

The judgment of the Hon’ble Supreme Court neither discussed the crucial aspect of substitution of rule 61(5), retrospectively w.e.f.1.7.2017, categorising GSTR-3B as a return u/s 39 of CGST Act, vide notfn No.49/2019-CT dated 9.10.2019, after delivery of the judgment of Gujarat HC dated 24.6.2019 nor commented upon this subsequent amendment by CBIC, before overruling the judgment of Gujarat HC. The CBIC amended Rule 61(5) to nullify the judgment of Gujarat HC.

Furter, the judgment of the Hon’ble Supreme court was based on Obitur Dicta narrated in the case of Union of India v. Bharti Airtel Ltd. & Ors (2021) 36 J.K.Jain’s GST & VR 369, which is against all cannons of law laid down previously by the Hon’ble Supreme court in a No. of cases.

How the subsequent amendment dated 9.10.2019, that too, by way of amendment in rules, after pronouncement of the judgment of Hon’ble Gujarat HC dated 24.6.2019 can be used to reverse the judgment delivered previously. Even the Senior Advocate appeared in the supreme court, could not discuss this crucial aspect before the judges of the Supreme court inspite of ample opportunity given by the Hon’ble Supreme court.

Inspite of all this, it is the New & Unique Ratio decidendi given by the Hon’ble Supreme Court by overruling the judgment dated 24.6.2019 of Hon’ble Gujarat HC and legalised subsequent amendment carried out by CBIC in rule 61(5), retrospectively.

It tantamounts to a non speaking order of the Apex Court based on Obiter Dicta.

I have covered all the above crucial aspects in my analysis given in the magazine (2021) 36 J.K.Jain’s GST & VR 519.