2018 Taxo.online 491
W.P.(C) 9019/2017 & CM APPL. No.36921/2017 dated 26.11.2018
ANIL GOYAL AND ASSOCIATES
UNION OF INDIA AND ORS.
Central Goods & Services Tax Act, 2017
Section 39 of CGST, 2017
61(5) of CGST Rules, 2017
No.07/07/2017-GST File No.349/164/2017-GST dated 01.09.2017
Sanjiv Khanna Justice & Jairam bhambhani, Justice
Represented by: –
Petitioner – Mr.Puneet Agrawal, Adv with Mr.Sai Prasanna, Adv
Respondent: – Mr.Amit Bansal with Ms.Seema Dolo, Adv. for R3/GST.
Mr.Anurag Ahluwalia, CGSC for UOI.
Mr.Satyakam, ASC with Mr.Mohit Kumar, Adv. for R-2/GNCTD
M/s. Anil Goel & Associates, a firm of Chartered Accountants has filed the present writ petition praying for multiple reliefs; but during the course of arguments, learned counsel for the petitioner has confined his challenge to the validity of Circular No.07/07/2017-GST File No.349/164/2017-GST dated 01.09.2017 as being violative of Section 39 of the Central Goods & Services Tax Act, 2017 (‘Act’ for short); and Rule 61(5) of the Central Goods and Services Tax Rules, 2017 (‘Rules’ for short).
Learned counsel for the respondent has drawn our attention to the counter affidavit filed on behalf of the Commissioner of Central Tax, GST, Delhi-East, wherein it has been stated that the return filed in Form GSTR-3B is not in addition to the return in Form GSTR-3. Rule 61(5) of the Rules prescribes that where time for furnishing of details/returns in Form GSTR-1 under Section 37 and in Form GSTR-2 under Section 38 are extended, the Commissioner may, by notification specify that return may be filed under GSTR-3B. In other words, wherever the Commissioner has issued notification in terms of sub-rule 5 of Rule 61, the assessee would be required to file return in Form GSTR-3B and not in Form GSTR-3. Learned counsel for the petitioner is substantially satisfied as the statement made clarifies that Form GSTR-3B and not GSTR-3 is to be filed in case covered by Rule 61(5) of the Rules.
Counsel for the respondents has stated that notifications have been issued by the Commissioner, as per which the assessee are required to file returns in Form GSTR-3B till 31st March, 2019. Till then, returns are not required to be filled under Form GSTR-3.
Petitioner however submits that vide Notification No.23 of 2017-Central Tax dated 17.08.2017 the assessee were required to compute and deposit tax for the month of July, 2017 in cash as per Rule 87 of the Rules on or before 20.08.2017. The due date for filing of the return was 28.08.2017. This stipulation it is submitted is contrary to requirement of sub-section 7 of Section 39, which requires that every registered person should pay to the Government the tax due as per the return no later than the last date on which he is required to furnish such return. According to the petitioner, the last date for filing of tax in terms of sub-section 7 to Section 39 has to be last date for filing of return.
Counsel for the petitioner further submits that sub-rule 5 of Rule 61 of the Rules states that the Commissioner, by notification, can specify the manner and condition subject to which return in Form GSTR-3B can be electronically furnished. This it is urged amounts to excessive delegation, beyond the legislative mandate of Section 39 of the Act.
Respondents would file an affidavit meeting the said contentions within four weeks from today. Rejoinder thereto, if any, may be filed within four weeks thereafter.
Re-list on 12th February, 2019.
Order dasti under the signature of the Court Master.