Page 159 - GSTL_18th June 2020_Vol 37_Part 3

2020 ] IN RE : OMSAI PROFESSIONAL DETECTIVE AND SECURITY SERVICES PVT. LTD. 373
specified in Section 39(1) of the Act, read with Rule 61(1) of the
Rules, that is the return in Form GSTR-3. Nothing else.
Thus, the next question to answer is whether the return in Form
GSTR-3B can be treated as return in Form GSTR-3 within the mean-
ing of Section 39(1) of the Act read with Rule 61(1) of the Rules. But,
my enquiry is made easy by the judgment and orders of the Hon’ble
High Court of Judicature of Gujarat at Ahmadabad in R/Special
Civil Application No. : 18962 of 2018, dated 24-6-2019 - 2019-VIL-
314-GUJ = 2019 (26) G.S.T.L. 481 (Guj.). Thus, the issue is no more a
res integra. Their lordships at para 28 and 30 of the said judgment
and orders held as under :-
Para 28 :- “Therefore, the moot question is, whether the return in
Form GSTR-3B is a return required to be filed under Section 39 of
the CGST Act/GGST Act. The aforesaid press release is valid and in
consonance with Section 16(4) of the CGST Act/GGST Act only if
Form GSTR-3B is a return required to be filed under Section 39 of
the CGST Act/GGST Act.”
Para 30 :- “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 Section 38, i.e. 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 taxpayers it was decided to keep filing of
GSTR-2 and GSTR-3 in abeyance. Therefore, in order to ease the
burden of the taxpayer 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 introduced 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 notified. Notifications are being
issued from time to time extending the due date of filing of the re-
turn in Form GSTR-3, i.e. return required to be filed under Section
39 of the CGST Act/GGST Act. It was notified vide Notification 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 Ju-
ly, 2017 to March, 2019 shall be subsequently notified in the Official
Gazette.”
Their lordships of the High Court of Gujarat were examining the le-
gality or otherwise/validity or otherwise of the said press release
which considered both GSTR-3B and GSTR-3 as one the same. The
question is framed in para 28 of the said judgment and the same is
answered in negative at para 33 therein. Thereby their lordships de-
clared that for the purpose Section 39, the return means the return
in Form GSTR-3 only, but not Form GSTR-3B during the relevant
period. It is held therein that the Return in Form GSTR-3B is not
even the return in lieu of the return in Form GSTR-3 (para 31).
Holding so, the clarification given in the said press release dated 18-
10-2018 of the Government of India is held to be illegal for the dis-
puted period. Thus, the very Jurisdictional factor to exercise the
power of the best judgment assessment under Section 62 is conspic-
uously absent herein. Thus, I have no hesitation to declare that the
best judgment common assessment, penalty and interest orders im-
GST LAW TIMES  18th June 2020  159