To issue directions to edit and upload actual entries in GSTR 3B for May 2019.
Facts of the Case:
1. Proprietary concern engaged in the business of dress materials etc, inadvertently, wrongly uploaded entries in Gstr 3B for May 2019.
2. The dealer wrongly uploaded the entries of M/s Deepak Process instead of M/s Deepak Print.
3. The dealer made representation in writing to the Nodal Officer, SGST Office, Rajkot on 25th June 2019 but the the nodal officer did not even bother to respond to the representation.
Citations Referred to:
Commissioner of Central Excise, Bolpur vs. Ratan Melting and Wire Industries, (2008) 13 SCC
Emphasis Of Matter:
Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law.
1. The Respondents have also not been able to expressly indicate the rationale for not allowing the rectification in the same month to which the Form GSTR-3B relates.
2. The only remedy that can enable the Petitioner to enjoy the benefit of the seamless utilization of the input tax credit is by way of rectification of its annual return i.e. GSTR-3B.
3. The rectification of the return for that very month to which it relates is imperative.
4. Accordingly, we read down para 4 of the impugned Circular No. 26/26/2017-GST dated 29.12.2017 to the extent that it restricts the rectification of Form GSTR-3B in respect of the period in which the error has occurred.
5. The writ applicant should be permitted to rectify the Form GSTR-3B in respect of the relevant period.
6. The writ applicant has been dragged into unnecessary litigation only on account of the technicalities raised by the respondents, the writ applicant shall not be saddled with the liability of payment of late fees.
This is a landmark judgement by the Hon’ble HC deciding in favour of the writ applicant setting aside the anomaly of non-provisioning of the rectification of Gst 3B returns since the inception of the Gst return filing system and to nullify the liability for payment of late fees that could have been calculated by the GSTN and could have been imposed on the applicant.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs;
“(A) To admit and allow this petition;
(B) To issue any appropriate writ, order or direction to the respondents permitting the petitioner to edit and upload actual entries in GSTR-3b for the Month of May-2019 which is at the submission stage;
(C ) To issue any appropriate writ, order, or direction to the respondents to modify the conditions and rules mentioned in the Annexure-A by which a registered person can edit any error if occurred during submitting/offsetting the ITC and before filing of the GSTR-3b return;
(D) Pending hearing, admission, and/or final disposal of this petition, Your Lordships may be pleased to stay the late fees of Rs.50/- daily being charged on the petitioner for non-filing of the said return for the said month i.e, May-2019 and also may be pleased to stay the late fees of Rs.50/- daily being charged for the subsequent due returns;
(E) This Hon’ble Court may be pleased to wave the late fee charged for non-submission of the return for the month of May-2019 and further be pleased to wave the late fee being charged daily for the non-submission of returns due for the subsequent months by considering facts, circumstances and genuineness of the case;
(F) To pass any such other and further orders as Your Lordships may deem just, fit in the interest of justice.”
2. The facts, giving rise to this litigation, may be summarized as under;
2.1 The writ applicant is a proprietary concern and is engaged in the business of printing of dress materials etc. It is not in dispute that the proprietary concern is registered under the CGST/GGST Act, 2017. It appears that the writ applicant had submitted the return of his business in the month of May, 2019 through the Online process, i.e, the GST Online Portal. The writ applicant, inadvertently, in the course of making entries in the GSTR-3B for the month of May, 2019, wrongly uploaded the entries of M/s. Deepak Process instead of M/s. Deepak Print.
2.2 In such circumstances, referred to above, the writ applicant preferred a representation in writing addressed to the Nodal Officer, SGST Office, Rajkot dated 25th June, 2019, which reads as under;
Sub:- Request to Undo Offset of May 2019 GSTR3B GSTNo 24ABYPB5420A124.
By mistake, we have uploaded GSTR3B wrong data in May 2019 month return. We have not filed return yet. We have just submitted and realize our mistake. Now we want to edit our figures. Data submitted is of another party with similar kind of name. Wrong Turnover & wrong ITC which is submitted is too much high and we cannot adjust same as per circular 26/2017 dated 29.12.17. Turnover Rs.53713454/- & Total Rs.2685672/-output wrongly shown and ITC Rs.2273945/- lakh wrongly claimed. Actual Turnover is Rs.498407/- & output Rs.24920/- and ITC Rs.21100/-. We have no option except to raise issue with you people.
Please undo offset figures and re-enable submit button or Provide us fresh blank may month. Remove submitted lock. We have attached right and wrong party data. Deepak Print data is right while Deepak Process data is wrong one. By mistake, Deepak Process data uploaded in Deepak Print.
We request to undo Offset of May 2019 GSTR3B.
M/s. Deepak Print
2.3 It appears that the Nodal Officer at Rajkot did not even bother to give a formal reply or respond to the representation preferred by the writ applicant, referred to above. The writ applicant did try his best to take up the matter with the concerned authority, but ultimately had to come before this Court with the present writ application.
2.4 We take notice of the fact that in last two years, the respondents have not even thought fit to file a formal reply opposing the writ application. Even, as on date, time was prayed for, which this Court declined having regard to the facts of the present case.
2.5 We have heard Mr. Raj Tanna, the learned counsel appearing for the writ applicant and Mr. Utkarsh Sharma, the learned standing counsel appearing for the respondents.
2.6 The short point for our consideration is whether the writ applicant is entitled to seek rectification of Form GSTR-3B for the month of May, 2019.
2.7 The aforesaid issue is no longer res-integra in view of the decision of the Delhi High Court in the case of Bharti Airtel Limited vs. Union of India & Ors., Writ Petition (Civil) No.6345 of 2018, decided on 05.05.2020. We quote the relevant observations of the Delhi High Court as under;
“12. The controversy in the present case actually lies in a narrow compass. The grievance of the Petitioner pertains to the rectification of Form GSTR- 3B for the period from July to September, 2017. This is the tax period/month in which the error has crept in. Though, the question before us is a short one, however, since the same concerns the scheme of the CGST Act, we would have to delve into the concepts of filing of returns and the statutory provisions governing the same. The Scheme of filing of returns as envisaged by the CGST Act is explained herein below:
a) Section 37(1) of the CGST Act provides that a registered person is required to file a return (Form GSTR-1) containing details of his outward supply for the tax period i.e. a month. These details of outward supplies of a registered person are communicated to the recipients in an auto-populated return (Form GSTR-2A) under Section 37(1) read with Section 38(1) of the CGST Act.
b) Section 38(1) of the CGST Act provides that a registered person shall verify, validate, modify or delete such details of inward supplies communicated under Section 37(1) of the CGST Act in the Form GSTR-2A. Thereafter, under Section 38(2) of the CGST Act the recipient files a return (Form GSTR-2) containing details of his inward supplies based on Form GSTR 2A. These details are then communicated to the suppliers under Section 38(3) of the CGST Act and suppliers can accept or reject the details under section 37(2) and Form GSTR-1, shall stand amended accordingly. It is important to note that the details of inward supplies provided in Form GSTR-2 are auto-populated in the ITC ledger of the recipient of such supplies on submissions of this form.
c) Section 38(5) of the CGST Act and 39(9) of the CGST Act provide W.P.(C) 6345/2018 Page 10 of 25 that details that have remained unmatched shall be rectified in the return to be furnished for the month during which such omission or incorrect particulars are noticed.
d) Section 39 of the CGST Act provides that every registered person shall furnish a return (From GSTR-3) of inward and outward supplies, ITC, tax payable, tax paid and such other particulars as may be prescribed.
13. On a plain reading of the above provisions, it clearly emerges that the statutory scheme, as envisaged under the Act provided a facility for validation of monthly data through the IT System of the Government wherein the output of one dealer (Form GSTR-1), becomes the input of another dealer and gets auto-populated in Form GSTR-2 (Inward Supplies). These details had to be electronically populated in Form GSTR-3 (Monthly Return) and tax had to be paid based on this return. The CGST Act and the CGST Rules as envisaged provided for verification, validation, modification and deletion of information for each period by interaction, over the IT System, between the supplier and the recipient so as to reflect the correct details pertaining to the tax period in that particular tax period itself (i.e. a month). In short, the CGST Act contemplated a self-policing system under which the authenticity of the information submitted in the returns by registered person is not only auto-populated but is verified by the supplier and confirmed by the recipient in the same month. The statutory provisions, therefore, provided not just for a procedure but a right and a facility to a registered person by which it can be ensured that the ITC availed and returns can be corrected in the very month to which they relate, and the registered person is not visited with any adverse consequences for uploading incorrect data.
14. Now, let us also examine the rectification scheme under the Act. The statute provides for a 2-stage rectification procedure by which the errors or omissions can be rectified by a registered person.
a) The 1st stage of rectification can happen under Section 37(1) read with Sections 38 (1), 38 (3) and 37 (2) of the CGST Act wherein a registered person could rectify the errors or omissions pertaining to a tax period in the return to be furnished for such tax period itself through a self-policing and auto-populated interaction on the system.
b) The 2nd stage of rectification is provided under Section 38 (5) and 39 (9) of the CGST Act wherein, in respect of only unmatched details – which could not be corrected at the first stage, rectification could be done in the return to be furnished for the month during which such omission or incorrect particulars were noticed.
15. While the GST regime envisaged the filing process and recording of ITC and payment of taxes as above, admittedly, due to system issues and under preparedness with regard to the extent of data to be processed, Form GSTR-2, and 3 were not made operational; and have been now completely done away with. Form GSTR-2A was made operational only in September 2018 by the Government. This Form is also valid in respect of the past periods commencing July 2017. The Respondents do not dispute that the statutory scheme envisaging the filing of return GSTR-2 and 3 could not be put into operation and has been indefinitely deferred. This makes it abundantly clear that neither the systems of the Government were ready, nor were the systems of the suppliers all across the country geared up to handle such an elaborate electronic filing and reconciliation system introduced for the first time.
16. Since Forms GSTR-2 and 3 could not be operationalized by the Government, the Government introduced Rule 61(5) (which was amended vide Notification No. 17/2017-Central Tax, dated 27.07.2017) and the Rule 61(6) in the CGST Rules, and provided for filing of monthly return in Form GSTR-3B which is only a summary return. Mr. Singh appearing for the Revenue does not controvert the submission of Mr. Gulati that Form GSTR- 3B is filled in manually by each registered person and has no inbuilt checks and balances by which it can be ensured that the data uploaded by each registered person is accurate, verified and validated. Therefore, the design and scheme of the Act as envisioned has not been entirely put into operation as yet. In these circumstances we find merit in the submission of Mr. Gulati that if the statutorily prescribed form i.e. GSTR-2 & 3 had been operationalized by the Government – as was envisaged under the scheme of the Act, the Petitioner with reasonable certainty would have known the correct ITC available to it in the relevant period, and could have discharged its liability through ITC, instead of cash. We also find force in the submission of Mr. Gulati that since Form GSTR-2 & 2A were not operationalized – and because the systems of various suppliers were not fully geared up to deal with the change in the compliance mechanism, the Petitioner perhaps did not have the exact details of the input tax credit available for the initial three months i.e. the relevant period. In this situation, since Petitioner’s ITC claim was based on estimation and the exact amount for the relevant period was not known, Petitioner discharged the GST liability for the relevant period in cash, although, in reality, ITC was available with it (though it was not reflected in the system on account of lack of data). Indisputably, if the statutorily prescribed returns i.e. GSTR 2 and GSTR 3 had been operationalized by the Government, the Petitioner would have known the correct ITC amount available to it in the relevant period, and could have discharged its liability through ITC. As a consequence, the deficiency in reporting the eligible ITC in the months of July – September 2017 in the form GSTR-3B has resulted in excess payment of cash by the Petitioner.
17. Now that the correct figures are known to the Petitioner, and limited rectification of returns is permissible, why is Petitioner’s grievance not redressed? The answer lies in the refund provisions that we shall now allude to briefly. These provisions are the stumbling block for the petitioner to remedy the situation. ITC is taken on the basis of the invoices issued to a registered person providing input/output services. This ITC is credited to the electronic credit ledger [Section 2 (46) of the CGST Act] under section 49(2) of the CGST Act. The output tax liability of the supplier can be paid through utilization of ITC available in the electronic credit ledger, or by utilization of the amount available in the electronic cash ledger [Section 2(43) of the CGST Act] under section 49 (1) of the CGST Act. Section 54 (1) of the CGST Act provides for the refund of the amount of excess paid tax. The said provision read with Circular dated 29.12.2017, deals with the W.P.(C) 6345/2018 Page 14 of 25 refund of excess tax paid. Under the proviso to section 54 (1) read with Section 49(6), refund of excess input tax credit is allowable only in two situations – where there is zero (0) rated tax, or inverted duty structure. Further, refund of cash is allowed in case of excess balance in electronic cash ledger in accordance with Section 46 (6) of CGST Act. Refund can also be claimed if tax is paid on supply which is not provided, either wholly or partially, and for which invoice has not been issued. Furthermore, refund can be given under Section 77 of the Act which deals with tax wrongfully collected and paid to Central Government or State Government. Therefore, the above provisions would not entirely remedy the situation for the Petitioner. For this reason, we cannot countenance the stand of the Respondents as stated in their additional affidavit. Respondents are unreasonably harping on the mistake on the part of the Petitioner for not utilizing of input tax credit on account of erroneous reporting. While the Respondents may be correct in stating that the case of the Petitioner may not qualify as “payment of excess tax”, but one cannot ignore the circumstances narrated above. In the first instance, the Petitioner has made payment of taxes in cash, only because the extent of input tax credit could not be computed. In terms of para 4 of Circular No. 26/26/2017-GST, adjustment of tax liability of input tax credit is permissible in subsequent months. For the months of September/October, 2018, the output liability for the said months was adjusted by following the procedure as provided in the said circular. However, Mr. Gulati has explained, the output tax liability has substantially reduced on account of low tariff in the telecom sector. As a result, the input tax credit which has accumulated on account of erroneous reporting, cannot be fully utilized in the prevailing tariff structure. The surplus input tax credit is expected to grow, for the later months as well, and there would be further inflow of input tax credit. In these circumstances, the adjustment of the tax liability in subsequent tax period would not recompense the Petitioner. Mr. Gulati has drawn our attention to the tabulations placed on record to illustrate his point. Moreover, even if there is a possibility to adjust the accumulated ITC in future, that cannot be a ground to deprive the Petitioner the option to fully utilize the input tax credit which it is statutorily entitled to do so.
18. While arriving at this conclusion we also have to take into account that the Respondents have absolutely failed in operationalizing the forms that were originally envisaged under the Act. The scheme of the CGST Act as introduced, contemplated validation and verification of data which was to be uploaded vide Form GSTR-2 & 3. However, in absence of such statutory forms being operationalized on account of lack of technical infrastructure, Form GSTR-3B was introduced and it was required to be filled in manually. There cannot be any dispute that Form GSTR-3B has been brought into operation instead of Form GSTR-2 and GSTR-3. This Form GSTR-3B as introduced by Rule 61 (5) being at variance with the other statutory provisions does not permit the data validation before it is uploaded. As per the Respondents, Form GSTR-3B is a return not in addition to GSTR-3, but in place of it, till such time GSTR-3 gets operationalized. Form GSTR-3B which has been brought into operation by virtue of Section 168 of the CGST Act, in comparison with Form GSTR-3 is a truncated version. Thus, we find merit in the submission of Mr. Gulati that with this change brought in by the Respondents, the form originally contemplated got fundamentally altered. As a result, the checks and balances which were prescribed in the original forms got effaced and it cannot be ruled out that this possibly caused inaccuracies to creep in the data that is required to be filled in.
19. Acknowledging the fact that manual filling of forms can result in errors, Respondents permitted rectification by way of the Circular No. 7/7/2017- GST issued by CBEC, relevant portion whereof reads as under:
“3. As per the provisions of sub-rule (5) of rule 61 of the Rules, the return in FORM GSTR-3B was required to be furnished when the due dates for filing of FORM GSTR-1 and FORM GSTR-2 have been extended. After the return in FORM GSTR-3B has been furnished, the process of reconciliation between the information furnished in FORM GSTR-3B with that furnished in FORM GSTR-1 and FORM GST-2 would be carried out in accordance with the provisions of sub-rule (6) of rule 61 of the Rules.
4. x x x
5. x x x
6. Correction of erroneous details furnished in FORM GSTR- 3B:
In case the registered person intends to amend any details furnished in FORM GSTR3B, it may be done in the FORM GSTR- 1 or FORM GSTR-2, as the case may be. For example, while preparing and furnishing the details in FORM GSTR-1, if the outward supplies have been under reported or excess reported in FORM GSTR-3B, the same maybe correctly reported in the FORM GSTR-1. Similarly, if the details of inward supplies or the eligible ITC have been reported less or more than what they should have been, the same maybe reported correctly in the FORM GSTR-2. This will get reflected in the revised output tax liability or eligible ITC, as the case may be, of the registered person. The details furnished in FORM GSTR-1 and FORM GSTR-2 will be auto-populated and reflected in the return in FORM GSTR-3 for that particular month.”
The portion of the said circular underlined above, provided for reconciliation and restatement of tax liability based on the amended ITC of the relevant month. Later, Respondent introduced the impugned circular No. 26/26/2017- GST dated 29.12.2017, whereby the earlier Circular No. 7/7/2017-GST has been kept in abeyance. Para 3 of the said Circular provides for amendment/ rectification of errors, para 4 imposes a restriction on the same and stipulates that the rectification of errors can be done concurrently in the month in which the error is noticed, and not in the month to which the data relates. The relevant portion of the said circular is reproduced hereinbelow:
” 3. Amendment / corrections / rectification of errors:
3.1 Various representations have been received wherein registered persons have requested for clarification on the procedure for rectification of errors made while filing their FORM GSTR-3B. In this regard, Circular No. 7/7/2017-GST dated 1st September 2017 was issued which clarified that errors committed while filing FORM GSTR – 3B may be rectified while filing FORM GSTR-1 and FORM GSTR-2 of the same month. Further, in the said circular, it was clarified that the system will automatically reconcile the data submitted in FORM GSTR-3B with FORM GSTR-1 and FORM GSTR-2, and the variations if any will either be offset against output tax liability or added to the output tax liability of the subsequent months of the registered person.
3.2 Since, the GST Council has decided that the time period of filing of FORM GSTR-2 and FORM GSTR -3 for the month of July 2017 to March 2018 would be worked out by a Committee of officers, the system based reconciliation prescribed under Circular No.7/7/2017-GST dated 1st September 2017 can only be operationalized after the relevant notification is issued. The said circular is therefore kept in abeyance till such time.
3.3 The common errors while submitting FORM GSTR-3B and the steps needed to be taken to rectify the same are provided in the table annexed herewith. The registered person needs to decide at which stage of filing of FORM GSTR-3B he is currently at and also the error committed by him. The corresponding column in the table provides the steps to be followed by him to rectify such error.
4. It is clarified that as return in FORM GSTR-3B do not contain provisions for reporting of differential figures for past month(s), the said figures may be reported on net basis alongwith the values for current month itself in appropriate tables i.e. Table No. 3.1, 3.2, 4 and 5, as the case may be. It may be noted that while making adjustment in the output tax liability or input tax credit, there can be no negative entries in the FORM GSTR-3B. The amount remaining for adjustment, if any, may be adjusted in the return(s) in FORM GSTR- 3B of subsequent month(s) and, in cases where such adjustment is not feasible, refund may be claimed. Where adjustments have been made in FORM GSTR-3B of multiple months, corresponding adjustments in FORM GSTR-1 should also preferably be made in the corresponding months.”
20. The earlier circular has not been rescinded by the impugned circular dated 29.12.2017, but only kept in abeyance. Be that as it may, we see no reason as to why the rectification/adjustment is being allowed in the month subsequent to when such errors relate, and the Respondents have restricted the mechanism of rectification to the same tax period, in which they were noticed and sought to be rectified. In our view, para 4 of Circular No. 26/26/2017-GST dated 29.12.2017 is not in consonance with the provisions of CGST Act, 2017. The impugned circular expressly states that the time period for filing of Form GSTR-2 and GSTR-3 for the months of July, 2017 to March, 2018 would be worked by a committee, as system-based reconciliation can only be operationalized after the relevant notification is issued. Thus, the impugned circular, in unequivocal terms, recognizes the concept of system-based reconciliation of ITC and output liability for the same tax period as per the statutory provisions. We, therefore, do not find any cogent reasoning behind the logic for restricting rectification only in the period in which the error is noticed and corrected, and not in the period to which it relates. There is no provision under the Act that has been brought to our notice which would restrict such rectification. In fact, the Respondents’ contention is to the effect “thus, the Act does not provide that the data filled by a registered person has to be validated in that month itself. Accordingly Circular No. 26/26/2017-GST dated 29.12.2017 was issued providing that rectification of errors can be done, concurrently in that month in which the errors is known and not in the month to which the data relates” is palpably flawed. The restriction if any, that can be introduced by way of a circular, has to be in conformity with the scheme of the Act and the provisions contained therein. In fact, as noticed above, the earlier Circular No. 7/7/2017-GST does recognize that the reconciliation is based on amended ITC of the relevant month. This is in terms of provisions of CGST Act and the Respondents’ contention is contrary to the same. Thus, the constraint introduced by para 4 of the impugned circular, is arbitrary and contrary to the provisions of the Act and, therefore, we have no hesitation in declaring it to be so. It is trite proposition of law that circular issued by the Board cannot be contrary to the Act and the Government cannot impose conditions which go against the scheme of the statutory provisions contained in the Act. The subordinate legislation must conform to the statute under which it is made, and they cannot whittle down the benefits granted under statutory provision. The Respondents have failed to fully enforce the scheme of the Act, and cannot take benefit of its own wrong of suspension of the Statutory Forms and deprive the rectification/amendment of the returns to reflect ITC pertaining to a tax period to which the return relates to. Petitioner has a substantive right to rectify/adjust the ITC for the period to which it relates. The rectification/ adjustment mechanism for the months subsequent to when the errors are noticed is contrary to the scheme of the Act. The Respondents cannot defeat this statutory right of the Petitioner by putting in a fetter by way of the impugned circular. Since the Respondents could not operationalize the statutory forms envisaged under the Act, resulting in depriving the Petitioner to accurately reconcile its input tax credit, the Respondents cannot today deprive the Petitioner of the benefits that would have accrued in favour of the Petitioner, if , such forms would have been enforced. The Petitioner, therefore, cannot be denied the benefit due to the fault of the Respondents.
21. In this regard, we may note the views of the Supreme Court in some of the judgments. In the case of Commissioner of Central Excise, Bolpur vs. Ratan Melting and Wire Industries, (2008) 13 SCC 1, a reference was made by a bench of three Judges in Ratan Melting & Wire Industries Case, (2005) 3 SCC 57 to a bench of five judges to determine the issue of what is the binding effect of a judgment of Supreme Court vis-à-vis CBEC circulars. The reference was necessitated in the backdrop of a confusion created on account of the view expressed by a five judge bench of the Supreme Court in para 11 of Dhiren Chemical Industries Case, (2002) 2 SCC 127 which states that “…regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the revenue.” In order to elucidate the position in this respect, the five judge bench in Commissioner of Central Excise, Bolpur vs. Ratan Melting and Wire Industries (supra) referred to its earlier decision in Kalyani Packaging Industry vs. Union of India (2004) 6 SCC 719 and observed that Para 11 of Dhiren Chemical Industries (supra) was rightly clarified therein. In this background, the Court held in paragraph 7 as under :
“7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law.”
22. Besides, in the case of TATA Teleservices Ltd. Vs. Commissioner of Customs, (2006) 1 SCC 746, the question before the Supreme Court was whether the telephone LSP 340 imported would be entitled to the benefit of the exemption granted by Notification No. 21/2002-Cus. dated 1.03.2002 to cellular telephones. The controversy arose because CBEC issued a circular being Circular No. 57/2003 dated June 2003 which defined the phrase W.P.(C) 6345/2018 Page 22 of 25 “cellular phones” and clarified that a telephone would not be considered as a cellular phone, merely because it works on cellular technology. The basic fact was that LSP 340 utilized cellular technology and was mobile, although within a limited range. Contrary views were taken by different High Courts and, therefore, the matter came up in appeal before the Supreme Court. The Court while deciding this question, held as under:
“10. We are of the view that the reasoning of the Bombay Bench of the Tribunal as well as that of the Andhra Pradesh High Court must be affirmed and the decision of the Delhi Tribunal set aside insofar as it relates to the eligibility of LSP 340 to the benefit of the exemption notification. The Andhra Pradesh High Court was correct in coming to the conclusion that the Board had, in the impugned circular, predetermined the issue of common parlance that was a matter of evidence and should have been left to the Department to establish before the adjudicating authorities. The Bombay Bench was also correct in its conclusion that the circular sought to impose a limitation on the exemption notification which the exemption notification itself did not provide. It was not open to the Board to whittle down the exemption notification in such a manner…”
23. We would also like to add that the Respondents have also not been able to expressly indicate the rationale for not allowing the rectification in the same month to which the Form GSTR-3B relates. The additional affidavit filed by the Respondents as per the directions of this Court, also skirts this question and has only attempted to give some explanation which is not convincing and lacks objectivity and rationality. Respondents have admitted that the facility of Form GSTR-2A was not available prior to 2018 and, as such, for the months of July, 2017 to September, 2017 the scheme as envisaged under the CGST Act was not implemented. Respondents have also clearly acknowledged that there could be errors in Form GSTR-2A which may need correction by the parties and have, in fact, permitted the rectification, clearly reinforcing the stand of the Petitioner. The refund of excess cash balance in terms of Section 49 (6) read with Section 54 of the CGST Act does not effectively redress Petitioner’s grievance. Therefore, the only remedy that can enable the Petitioner to enjoy the benefit of the seamless utilization of the input tax credit is by way of rectification of its annual return i.e. GSTR-3B. The hypothetical situations canvassed by Mr. Singh, would not deter us from granting the relief sought by the Petitioner.
Each case would have to turn on its own facts. As and when a situation is brought to our notice, we would have to test the legality of the provision at that stage. Merely if there is any fanciful or absurd outcome in a given situation, as illustrated by Mr. Harpreet Singh, it does not mean that the Petitioner should not be given the benefit of rectification if the same is genuine. The correction mechanism is critical to sustaining successful implementation of GST.
24. Thus, in light of the above discussion, the rectification of the return for that very month to which it relates is imperative and, accordingly, we read down para 4 of the impugned Circular No. 26/26/2017-GST dated 29.12.2017 to the extent that it restricts the rectification of Form GSTR-3B in respect of the period in which the error has occurred. Accordingly, we allow the present petition and permit the Petitioner to rectify Form GSTR-3B for the period to which the error relates, i.e. the relevant period from July, 2017 to September, 2017. We also direct the Respondents that on filing of the rectified Form GSTR-3B, they shall, within a period of two weeks, verify the claim made therein and give effect to the same once verified. In view of the fact that the final relief sought by the Petitioner has been granted and the petition is allowed, no separate order is required to be passed in the application seeking interim relief. Accordingly, the said application is disposed of as such. “
3. Thus, in view of the aforesaid judgment, we hold that the writ applicant should be permitted to rectify the Form GSTR-3B in respect of the relevant period. The relief, as prayed for in Para-9(C) is also granted and the respondents shall act accordingly.
4. In such circumstances, referred to above, we direct the respondent No.4 that on filing of the rectified Form GSTR-3B, it shall, within a period of two weeks, verify the claim made therein and give effect to the same once verified. As the writ applicant has been dragged into unnecessary litigation only on account of the technicalities raised by the respondents, the writ applicant shall not be saddled with the liability of payment of late fees.
5. With the aforesaid directions, this writ application stands disposed of. We hope and trust that the writ applicant may not have to come back to this Court on any further technicalities that the Department is in the habit of raising, and thereby giving result to unnecessary litigation.