Hash Constructions Versus Deputy Commissioner, SGST, Kerala HC WP(C).No.671 OF 2021(H)
𝐅𝐚𝐜𝐭𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐂𝐚𝐬𝐞
- The petitioner did not file returns for the period April 2018 to May 2019.
- Orders is Form GST ASMT 13 were passed on 15.05.2019, under section 62.
- Orders in Form GST DRC-07 dated 22.10.2019, 27.11.2019 and 30.11.2019 came to be issued.
- Petitioner preferred statutory appeal under section 107 of the GST Act on 10.03.2020.
𝐃𝐞𝐜𝐢𝐬𝐢𝐨𝐧
- The appeal as it stands is an appeal challenging the assessment made by the Assessing Officer to the best of his judgment as per the provisions of Section 62 of the GST Act.
- That assessment order is not deemed to have been withdrawn due to non-filing of valid return within 30 days of service of the assessment order under Section 62 of the Act.
- As such, it cannot be said that the appeals filed by the petitioner were in fact the appeals challenging the demand notice in FORM GST DRC-07.
- 𝐄𝐯𝐞𝐧 𝐝𝐮𝐫𝐢𝐧𝐠 𝐩𝐞𝐧𝐝𝐞𝐧𝐜𝐲 𝐨𝐟 𝐭𝐡𝐢𝐬 𝐚𝐩𝐩𝐞𝐚𝐥𝐬, 𝐧𝐨 𝐚𝐦𝐞𝐧𝐝𝐦𝐞𝐧𝐭 𝐚𝐩𝐩𝐥𝐢𝐜𝐚𝐭𝐢𝐨𝐧 𝐰𝐚𝐬 𝐦𝐨𝐯𝐞𝐝 𝐭𝐨 𝐝𝐞𝐥𝐞𝐭𝐞 𝐭𝐡𝐞 𝐜𝐡𝐚𝐥𝐥𝐞𝐧𝐠𝐞 𝐬𝐨 𝐟𝐚𝐫 𝐚𝐬 𝐭𝐡𝐞 𝐀𝐬𝐬𝐞𝐬𝐬𝐦𝐞𝐧𝐭 𝐨𝐫𝐝𝐞𝐫 𝐢𝐧 𝐅𝐎𝐑𝐌 𝐆𝐒𝐓 𝐀𝐒𝐌𝐓-𝟏𝟑 𝐢𝐬 𝐜𝐨𝐧𝐜𝐞𝐫𝐧𝐞𝐝 𝐨𝐫 𝐭𝐨 𝐢𝐧𝐜𝐨𝐫𝐩𝐨𝐫𝐚𝐭𝐞 𝐭𝐡𝐞 𝐜𝐡𝐚𝐥𝐥𝐞𝐧𝐠𝐞 𝐭𝐨 𝐭𝐡𝐞 𝐨𝐫𝐝𝐞𝐫𝐬 𝐢𝐧 𝐅𝐎𝐑𝐌 𝐆𝐒𝐓 𝐃𝐑𝐂-𝟎𝟕.
𝐖𝐡𝐚𝐭 𝐜𝐨𝐮𝐥𝐝 𝐡𝐚𝐯𝐞 𝐛𝐞𝐞𝐧 𝐚𝐫𝐠𝐮𝐞𝐝?
The attention of the court must have been drawn to the decision of Hon’ble Gujarat High Court in the case of 𝐆𝐮𝐣𝐚𝐫𝐚𝐭 𝐒𝐭𝐚𝐭𝐞 𝐏𝐞𝐭𝐫𝐨𝐧𝐞𝐭 𝐋𝐢𝐦𝐢𝐭𝐞𝐝 𝐕𝐞𝐫𝐬𝐮𝐬 𝐔𝐨𝐈 reported as 𝟐𝟎𝟐𝟎 (𝟗) 𝐓𝐌𝐈 𝟒𝟐𝟕 wherein it was held that time period to file appeal starts from the date of electronic service of Form GST DRC-07 because said service enables electronic filing of appeal.
𝐂𝐨𝐧𝐜𝐥𝐮𝐬𝐢𝐨𝐧
Unlike other provisions of law, where the appeal cannot be filed unless summary of the order in Form GST DRC-07 is issued electronically and the demand is added in the electronic liability register, Hon’ble court in this case has considered it as a notice of recovery [Probably reliance placed on Rule 142(6)]. However, they appear to have allowed the appeal provided an application for amendment to the challenge had been filed by the petitioner. Therefore, despite referring the order of Hon’ble Gujarat HC, it is advisable to give a reference to Form GST DRC-07 in Form GST APL-01 to survive the limitation period. 𝐍𝐞𝐯𝐞𝐫𝐭𝐡𝐞𝐥𝐞𝐬𝐬, 𝐰𝐞 𝐚𝐫𝐞 𝐨𝐟 𝐭𝐡𝐞 𝐯𝐢𝐞𝐰 𝐭𝐡𝐚𝐭 𝐭𝐡𝐞 𝐬𝐞𝐫𝐯𝐢𝐜𝐞 𝐨𝐟 𝐨𝐫𝐝𝐞𝐫 𝐢𝐬 𝐜𝐨𝐦𝐩𝐥𝐞𝐭𝐞 𝐨𝐧 𝐞𝐥𝐞𝐜𝐭𝐫𝐨𝐧𝐢𝐜 𝐬𝐞𝐫𝐯𝐢𝐜𝐞 𝐨𝐟 𝐅𝐨𝐫𝐦 𝐆𝐒𝐓 𝐃𝐑𝐂-𝟎𝟕 unless Commissioner allow manual filing of appeal by way of issuing notification.
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