Page 220 - GSTL_2nd July 2020 _Vol 38_Part 1

138 GST LAW TIMES [ Vol. 38
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 GST-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. There by their lordships
declared that for the purpose Section 39, the return means the re-
turn in Form GSTR-3 only, but not Form GSTR-3B. 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 In-
dia is held to be illegal. Thus, the very Jurisdictional factor to exer-
cise the power of the best judgment assessment under Section 62 is
conspicuously absent herein. Thus, I have no hesitation to declare
that the best judgment common assessment, penalty and interest
orders impugned herein are without the jurisdiction and hence, I
declare them as non est/void.
(2) For another reason also, these best judgment orders cannot be
sustained in law. The best judgment assessment under Section 62
can be made by taking into account all the relevant material which
are already available and/or the material available which is gath-
ered from the other sources. It is also clear from the settled judicial
principles on best judgment assessment that the estimations in-
volved in the best judgment assessment should not be based on
mere surmises and/or conjectures. Though estimations are involved
in the best judgment assessment, the same cannot be without any
basis or with some basis. In the instant case, uniformly the sup-
pressed turnovers for a particular month are estimated either most-
ly on the basis of returns of the outward supplies of the dealer in
Form GSTR-1 of that month or on the basis of the return in Form
GSTR-3B for the preceding month. The quantum of the outward
supplies declared by the dealer in such return is held to be incorrect
GST LAW TIMES  2nd July 2020  220