Page 151 - GSTL_18th June 2020_Vol 37_Part 3

2020 ] IN RE : OMSAI PROFESSIONAL DETECTIVE AND SECURITY SERVICES PVT. LTD. 365
Thus, from the above retrospective amendment (i.e. w.e.f. 1-7-2017),
it can be construed that FORM GSTR-3B is a return which will be
notified by the Commissioner of GST and it has no nexus with
FORM GSTR-3 the way it had before this amendment and accord-
ingly, it can be construed that FORM GSTR-3B is not a return pre-
scribed under Section 39 of CGST Act, 2017 as the very foundation
of the parity clause between two returns has been amended so as to
partake either of the returns colour in isolation.
(12) Also the fact that Rule 61(1) states, “Every registered person other
than a person referred to in section 14………shall furnish a returns
specified under sub-section (1) of section 39 in FORM GSTR-3 elec-
tronically……….”. Thereby drawing no relevance to GSTR-3B with
GSTR-3 and leaving no room for doubt regarding the distinct identi-
ty of both the returns. In other words, the GSTR-3 and GSTR-3B are
two different returns while the GSTR-3 is return prescribed u/s. 39,
ibid read with rule 61(1) of CGST Rules, 2017 and the GSTR-3B is
not so.
(13) In this regard, Appellant wishes to rely on the Hon’ble Gujarat High
Court in the case of AAP and Co., Chartered Accounts v. UOI 2019-
TIOL-1422-HC-AHM-GST held that GSTR-3B is not a return u/s 39.
The relevant extract from the case is produced as under : “it would
be apposite to state that initially it was decided to have three returns
in a month, i.e. return for outward supplies i.e. GSTR-1 in terms of
Section 37, return for inward supplies in terms of GSTR-2 and a
combined return in Form GSTR-3. However, considering technical
glitches in the GSTN portal as well as difficulty faced by the taxpay-
ers it was decided to keep filing of GSTR-2 and GSTR-3 in abeyance.
Therefore, in order to ease the burden of the taxpayers for some
time, it was decided in the 18th GST Council meeting to allow filing
of a shorter return in Form GSTR-3B for initial period. It was not in-
troduced as a return in lieu of return required to be filed in Form
GSTR-3. The return in Form GSTR-3B is only a temporary stop gap
arrangement till due date of filing the return in Form GSTR-3 is noti-
fied. Notifications are being issued from time to time extending the
due date of filing of the return in Form GSTR-3 i.e. return required
to be filed under Section 39 of CGST Act. It was notified vide Notifi-
cation No. 44/2018-Central Tax, dated 10th September, 2018 that the
due date of filing the return under Section 39 of the Act, for the
months of July, 2017 to March, 2019 shall be subsequently notified in
the Official Gazette.
31. It would also be apposite to point out that the Notification
No. 10/2017-Central Tax, dated 28th June, 2017 which intro-
duced mandatory filing of the return in Form GSTR-3B stated
that it is a return in lieu of Form GSTR-3. However, the Gov-
ernment, on realising its mistake that the return in Form GSTR-
03B is not intended to be in lieu of FORM GSTR-3, RECTIFIED
ITS MISTAKE RETROSPECTIVELY VIDE notification No.
17/2017-Central Tax, dated 27th July, 2017 and omitted the ref-
erence to return in GSTR-3B bing return in lieu of Form
GSTR-3.”
(14) Appellant submits that undisputedly the filing of the GSTR-3 is de-
ferred now vide Notification No. 12/2019, dated 7-3-2019 conse-
quently the jurisdiction to make the assessment u/s. 62, ibid is also
deferred. Further, the failure in filing of the GSTR-3B returns do not
give jurisdiction to make the assessment u/s. 62, ibid as the
GST LAW TIMES  18th June 2020  151