Page 219 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] IN RE : OMSAI PROFESSIONAL DETECTIVE AND SECURITY SERVICES PVT. LTD. 137
assessments are made accordingly in the same document of com-
mon orders in Form GST ASMT 13, levying the tax, penalty and in-
terest therein.
Thus, the short issue herein is whether the best judgment assess-
ment under Section 62(1) can be made in respect of the non-filers of
the returns in Form GSTR-3B? To answer this question, it is appro-
priate to extract the Section 62(1) of the Act and Rules 61(1) of the
Rules hereunder.
“Section 62. Assessment of non-filers of returns. - (1) Notwith-
standing anything to the contrary contained in Section 73 or Section 74,
where a registered person fails to furnish the return under Section
39 or Section 45, even after the service of a notice under Section 46,
the proper officer may proceed to assess the tax liability of the said
person to the best of his judgment taking into account all the relevant
material which is available or which he has gathered and issue an
assessment order within a period of five years from the date speci-
fied under Section 44 for furnishing of the annual return for the fi-
nancial year to which the tax not paid relates.
(2) Where the registered person furnishes a valid return within
thirty days of the service of the assessment order under sub-section
(1), the said assessment order shall be deemed to have been with-
drawn but the liability for payment of interest under sub-section (1)
of Section 50 or for payment of late fee under Section 47 shall con-
tinue.”
“Rule 61. Form and manner of submission of monthly return. - (1)
Every registered person other than a person referred to in section 14
of the Integrated Goods and Service Tax Act, 2017 or an Input Ser-
vice Distributor or a non-resident taxable person or a person paying
tax under Section 10 or Section 51 or, as the case may be, under Sec-
tion 52 shall furnish a return specified under sub-section (1) of sec-
tion 39 in FORM GSTR-3 electronically through the common portal
either directly or through a Facilitation Centre notified by the Chief
Com missioner.”
Thus, it is very clear that the best judgment assessment under Sec-
tion 62 can be made only when the dealer fails to file the return
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. 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.”
GST LAW TIMES  2nd July 2020  219