Page 153 - GSTL_18th June 2020_Vol 37_Part 3

2020 ] IN RE : OMSAI PROFESSIONAL DETECTIVE AND SECURITY SERVICES PVT. LTD. 367
holding/alleging suppression of tax and passing the best judgment orders is not
justifiable and not lawful.
13. The appellant further points out that it has filed the returns in Form
GSTR-1, that means actually scored outward taxable supplies are disclosed to the
Department, and as such there are no circumstances or logic to estimate the out-
ward supplies turnovers. The appellant also advanced two more objections.
Firstly, the A.A has added 50% to its actually scored turnover, while estimating
the total turnover for all the months. But, arbitrarily added 50% more turnover
without any basis or evidence. Secondly, the appellant also pointed out that as
per the contents of Section 62 a notice under Section 46 ought to have been issued
before passing the best judgment assessment orders as per Section 46, but the
A.A has not issued any such notices for the tax periods from January, 2019 to
February, 2019, and hence such orders are unlawful and liable to be set aside.
14. The appellant further contends that it has already submitted the re-
turns in Form GSTR-3B for the months of January, 2019 to February, 2019, which
shall be seen as a genuine effort by it to discharge its tax due. The appellant in its
submissions has attempted to interpret Section 39 in an interesting and relevant
point of dispute. The appellant contends that as per Section 39 of the Act, the re-
turns in Forms GSTR-1, GSTR-2 and GSTR-3 have been prescribed, but due to the
difficulty in the implementation of the relevant returns under the Act, which
were designed to be implemented as per the scheme explained supra were not
implemented by the Government of India and a new return in FORM GSTR-3B is
prescribed in lieu of the return in FORM GSTR-3 under Rule 61(5) of the CGST
Rules, 2017 (‘Rules’ for short). The extract of the said rule is given below :
“Where the time limit for furnishing of details in FORM GSTR-1 under Sec-
tion 37 and in FORM GSTR-2 under Section 38 has been extended and the
circumstances so warrant, return in FORM GSTR-3B. in lieu of FORM GSTR-
3, may be furnished in such manner and subject to such conditions as may
be notified by the Commissioner.”
15. From the above, it can be substantiated that the returns in FORM
GSTR-3B can be considered as a return filed in lieu of FORM GSTR-3 and accord-
ingly it can be said that FORM GSTR-3B is a return filed under Section 39 of the
CGST Act, 2017.
16. However, subsequently, the aforesaid sub-rule is amended vide
Notification No. 17/2017-Central Tax, dated 27-7-2017 w.e.f. 1-7-2017, by way of
substitution. The substituted sub-rule reads as under :
“Where the time limit for furnishing of details in FORM GSTR-1 under Sec-
tion 37 and in FORM GSTR-2 under Section 38 has been extended and the
circumstances so warrant, the Commissioner may, by notification, specify
the manner and conditions subject to which the return shall be furnished in
FORM GSTR-3B electronically through the common portal, either directly
or through a Facilitation Centre notified by the Commissioner.”
17. 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 accordingly, it can be construed that FORM GSTR-3B
is not a return prescribed under Section 39 of CGST Act, 2017 as the very founda-
tion of the parity clause between two returns has been amended so as to partake
either of the returns colour in isolation.

GST LAW TIMES  18th June 2020  153