Page 202 - GSTL_2nd July 2020 _Vol 38_Part 1

120 GST LAW TIMES [ Vol. 38
2020 (38) G.S.T.L. 120 (Appellate Authority - A.P.)

BEFORE THE APPELLATE UTHORITY UNDER GST, ANDHRA PRADESH
Smt. P. Vaishnavi, Joint Commissioner (ST) & Appellate Authority (ST)
IN RE : OMSAI PROFESSIONAL DETECTIVE AND SECURITY
SERVICES PVT. LTD.
Order No. 4394/2019, dated 20-8-2019 in Appeal No. APL1900047
Assessment under GST - Best judgment assessment - Non-filing of re-
turn Form GSTR-3B - In terms of Section 62 of Central Goods and Services Tax
Act, 2017 read with Rule 61 of Central Goods and Services Tax Rules, 2017,
best judgment assessment can be resorted only if dealer fails to file return
specified under Section 39 ibid - Under this provision, this return has to be
only GSTR-3 and not GSTR-3B - Settled by Gujarat High Court in 2019 (26)
G.S.T.L. 481 (Guj.) that return in Form GSTR-3B is an independent return pre-
scribed under GST law and not in lieu of return in Form GSTR-3 and hence
not covered under Section 39 ibid - Thus, mere non-filing of GSTR-3B cannot
be a ground for best judgment assessment - Impugned order being without
jurisdiction is non est/void - Section 62 of Central Goods and Services Tax Act,
2017. [para 25]
Assessment under GST - Best judgment assessment - Scope of - Said
assessment cannot be done on the basis of surmises and/or conjectures but by
taking into account all relevant material already available or as gathered from
other sources - In instant case, appellant had already filed return in Form
GSTR-1 wherein exact value of outward supplies were made available - Thus,
inflating such value by 150% for purpose of said assessment has no basis -
Nothing on record indicates that valuation of supplies declared in Form
GSTR-1 was suppressed - No effort was made to gather any material from oth-
er sources to counter declared value - Whimsical and unsubstantiated basis of
assessment not sustainable as same is not in accordance of settled guidelines -
In view of above, tax liability modified and confined to actual figures of out-
ward supply reflected in GSTR-1 return - Section 62 of Central Goods and
Services Tax Act, 2017. [para 25]
Penalty under GST - Single order of tax/penalty - Sustainability - Ad-
judicating Authority has passed a single order of assessment and penalty - In
terms of Andhra Pradesh High Court order dated 26-9-2018 in W.P. No. 33777
of 2018, determining penalty while passing tax/penalty orders through a single
order not legitimate - Section 122 of Central Goods and Services Tax Act, 2017.
[para 25]
Penalty - Mandatory penalty, scope of - Suppression of outward sup-
ply - Mandatory penalty under Section 122 of Central Goods and Services Tax
Act, 2017/State Goods and Services Tax Act, 2017 imposable only if there is
deliberate suppression of outward tax supplies - While appellant failed to file
GSTR-3B return, has filed GSTR-1 returns regularly showing outward tax
supplies - Thus, deliberate suppression of outward supply cannot be attribut-
ed to him - He could at best be liable for penalty for non-filing of GSTR-3B
return - Mandatory penalty not sustainable and set aside - Section 122 of Cen-
tral Goods and Services Tax Act, 2017. [para 25]

GST LAW TIMES  2nd July 2020  202