Page 211 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] IN RE : OMSAI PROFESSIONAL DETECTIVE AND SECURITY SERVICES PVT. LTD. 129
GSTR-3. may be furnished in such manner and subject to such conditions as
may be notified by the Commissioner.”
17. 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.
18. 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
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.”
19. 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.
20. 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.
21. 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.
22. Without prejudice to the above objections, the appellant also ques-
tioned that the AA has not served notice under Section 46 for certain months,
and hence orders basing on such action cannot be held as legitimate.
23. Regarding, the estimation of turnover by AA, the appellant objected
that since the outward taxable supplies turnover is available through the returns
in Form GSTR-1 filed by it, the AA ought to have raised demand based on the
actually scored disclosed turnovers instead of estimating the same that too with-
out any basis. The appellant averred that the AA has not gathered any additional
material or information to contradict with the disclosed turnovers, as such the
estimated turnovers by AA 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 from September,
2018 to December, 2018, following a different analogy which is not followed for
the present impugned tax periods, for the reasons not known.
GST LAW TIMES  2nd July 2020  211