Page 154 - GSTL_18th June 2020_Vol 37_Part 3

368 GST LAW TIMES [ Vol. 37
18. Thus, interpreting Section 39 in its point of view as discussed
above, the appellant contemplated that since GSTR-3 is deferred now vide Noti-
fication No. 12/2019, dated 7-3-2019, consequently the jurisdiction to make the
assessment under Section 62, ibid is also deferred. Further, the failure to file the
returns in Form GSTR-3B do not give jurisdiction to make the assessment under
Section 62, ibid as the GSTR-3B is not a return for the purpose of Section 39 of the
Act, ibid. Hence, the assessment made under Section 62, ibid fails and requires to
be set aside.
19. The appellant further contends that the assessment under Section
62, ibid shall be made after serving a valid notice under Section 46, ibid in form
GSTR-3A. Similar to the Section 62 of CGST Act, 2017, the Section 46, ibid also
refers to the returns to be filed under Section 39, ibid i.e. GSTR-3 and not the
GSTR-3B returns and hence there is no jurisdiction to serve the notice under Sec-
tion 46, ibid for failure to file the returns in Form GSTR-3B.
20. Without prejudice to the above objections, the appellant also ques-
tioned that the A.A has not served notice under Section 46 for certain months,
and hence orders basing on such action cannot be held as legitimate.
21. Regarding, the estimation of turnover by A.A, the appellant object-
ed that since the outward taxable supplies turnover is available through the re-
turns in Form GSTR-1 filed by it, the A.A ought to have raised demand based on
the actually scored disclosed turnovers instead of estimating the same that too
without any basis. The appellant averred that the A.A has not gathered any addi-
tional material or information to contradict with the disclosed turnovers, as such
the estimated turnovers by A.A lacks authenticity/legitimacy. The appellant also
raised an interesting point on this aspect, stating that the same A.A has raised the
demand basing on actual turnovers for the subsequent periods, following a dif-
ferent analogy which is not followed for the present impugned tax periods, for
the reasons not known.
22. Regarding the penalty levied, the appellant strongly contended that
since it has already disclosed the outward taxable supplies turnover through the
returns in Form GSTR-1, charging it with wilfulness/mala fides is not logical and
lacking justifiability. Hence, the penalty under Section 122 of the Act, does not
arise and such levy of penalty treating it as wilful suppression of the outward
supplies is erroneous.
Issues for adjudication :
(1) Whether the best judgment orders through estimating the outward
taxable supplies by A.A, are based on any dependable and authen-
tic evidence/basis or not?
(2) Whether the appellant’s contention that Section 62 cannot be in-
voked as GSTR-3B is not any return prescribed under Section 39 of
the Act, hence these orders are legal or not?
(3) Whether the wilful suppression aspect and resultant levy of 100%
penalty, is found to be having any basis and such wilfulness, has
been established by A.A or not?
(4) Whether the interest levied by A.A, is in tune with the provisions of
the GST Act or not?
Analysis :
23. Perused the grounds of appeal along with the assessment orders
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