MERITAS HOTELS PRIVATE LIMITED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner challenges the action on the part of the respondent no. 5 in refusing to accept and entertain the appeal preferred by the petitioner against the impugned assessment order dated April 20, 2019 passed under Sec. 62 of the Maharashtra Goods and Services Tax Act, 2017 (hereafter "the said Act" for short). Initially the appeal was tried to be filed manually by the petitioner on November 20, 2019 and thereafter on January 10, 2020 through the electronic mode.

(2.) It is the case of the petitioners that there was a delay in filing the GST returns for the month of February 2019 on account of financial crunches. The petitioner could not file the tax payable return on the GSTN portal as the GSTN portal did not allow filing of the return tax. A notice dated March 26, 2019 was issued by the respondent no. 4 upon the petitioner for non-filing of the return for the month of February 2019. The impugned summary assessment order dated April 20, 2019 in Form GST ASMT-13 under Sec. 62 of the MGST Act, 2017 fixing the liability of tax amount of Rs.20,96,888.00 along with interest of Rs.32,502.00 and penalty of Rs.23,06,577.00 was made. The physical true copy of the assessment order dated April 20, 2019 was not served on the petitioner nor was the same uploaded on the GSTN portal. The scanned copy of the impugned assessment order dated April, 20, 2019 was sent by email dated April 20, 2019 to the General Manager of the petitioner company. This email communication remained to be reported by the General Manager to the management of the petitioner company. The petitioner filed GSTR-3B for the month of February 2019 on June 14, 2019 on the basis of actual books of accounts. At the time of filing of the GSTR-3B for the month of February 2019, the petitioner company was not aware of the impugned assessment order. The petitioner came to know about the impugned assessment order only when their bank account came to be attached on July 1, 2019. The petitioner applied for certified true copy of the impugned assessment order on November 5, 2019. As the impugned assessment order was not available online, the petitioner had to file physical appeal by obtaining certified true copy on November 6, 2019. The petitioner even tried to file online appeal on the GSTN portal on January 10, 2020, after the order was uploaded on GSTN portal on January 8, 2020. The status on the portal was showing that there is a delay in filing the appeal.

(3.) Learned counsel for the petitioner submits the respondent no. 5 is not justified in refusing to accept and entertain the appeal tried to be filed by the petitioner under sub-sec. (1) of Sec. 107 of the said Act. Learned counsel submits that the impugned assessment order was passed unilaterally, without granting any opportunity of hearing to the petitioner and hence, the impugned assessment order violates the principles of natural justice. In the absence of giving any opportunity to the petitioner, the respondent no. 4-Deputy Commissioner was not justified in assessing the tax liability under Sec. 62 of the said Act on the best judgment basis and without granting the Input Tax Credit (ITC) to the petitioner. It is further submitted that the penalty levied is much more than the tax assessed which renders the impugned assessment order e x-facie illegal. Learned counsel vehemently submitted that the physical true copy of the impugned assessment order was not served on the petitioner nor the same was uploaded on the GSTN portal, in which case, refusal to accept and entertain the appeal on the ground of delay in filing thereof is unjustified. Learned counsel was at pains to point out that, as an abundant caution, the appeal was filed on November 20, 2019 manually as the certified true copy of the impugned assessment order was served on the petitioner only on November 6, 2019. Learned counsel further urged that the period of three months for presenting the appeal under sub-sec. (1) of Sec. 107 of the said Act shall have to be regarded from January 8, 2020, being the date on which the summary order in DRC-07 was uploaded online on the GST portal by the respondent no. 4-Deputy Commissioner. It is thus the contention of learned counsel for the petitioner that the appeal filed was well within limitation. In the alternative, it is the contention of learned counsel for the petitioner that despite existence of the remedy of a statutory appeal, it is open for the petitioner to challenge the impugned assessment order by way of a writ petition under Article 226 of the Constitution of India, as the same is passed in complete breach of the principles of the natural justice without affording any opportunity to the petitioner to contest the tax liability. Learned counsel relied upon the decision of the Gujarat High Court in the case of Gujarat Tate Petronet Limited Vs. Union of India, 2020-VIL-426-GUJ, in support of his submission.