SECTION 80 OF CGST ACT 2017:- BENEFIT NOT AVAILABLE IF ASSESSEE NOT FILED RETURNS & NOT PAID TAX

SECTION 80 OF CGST ACT 2017:- BENEFIT NOT AVAILABLE IF ASSESSEE NOT FILED RETURNS & NOT PAID TAX

IN THE HIGH COURT OF JUDICATURE AT
MADRAS

K.I. International (India) Ltd.
Vs
Principal Secretary &

The State Tax Officer

Appeal Number: Writ Petition No. – 10379 of 2020

Date of Judgement/Order: 5th April 2023

BRIEF FACTS

This writ petition has been instituted on the ground that benefit under Section 80 of the grant of instalments should have been extended to the petitioner. The purpose of Section 80 is to provide benefits to an assessee who approaches the Commissioner for a scheme of instalments. The sole exception to the application of Section 80 is with respect to admitted tax. The language in Section 80 specifies ‘other than the amount due as per the liability self-assessed in any return.

IMPORTANT PARAGRAPHS

Para: – 13. The petitioner thus argues that the form GSTR I does not comprise a return and thus the exclusion that is set out under Section 80 would not apply to it. This argument is rejected in limine for the following reasons. Section 2 (37) defines ‘a return’, to mean ‘any return prescribed or otherwise required to be furnished by or under this Act or the Rules made thereunder‘.
Para :-14. Section 37 onwards till Section 48 falling under Chapter IX and entitled ‘Returns‘ proceeds on the basis that the various forms prescribed for filing by assessees, either setting out details of inward or outward supplies or tax credit, would all constitute returns. Specific reference may be made to Section 39 which deals with furnishing of returns and reads as follows:-

Furnishing of returns.—

1. Every registered person, other than an Input Service Distributor or a non-resident taxable person or a person paying tax under the provisions of section 10 or section 51 or section 52 shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, of inward and outward supplies of goods or services or both, input tax credit availed, tax payable, tax paid and such other particulars, in such form and manner, and within such time, as may be prescribed, on or before the twentieth day of the month succeeding such calendar month or part thereof.
2. A registered person paying tax under the provisions of section 10 shall, for each quarter or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, of turnover in the State or Union territory, inward supplies of goods or services or both, tax payable and tax paid within eighteen days after the end of such quarter.
3. Every registered person required to deduct tax at source under the provisions of section 51 shall furnish, in such form and manner as may be prescribed, a return, electronically, for the month in which such deductions have been made within ten days after the end of such month.
4. Every taxable person registered as an Input Service Distributor shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, withinthirteen days after the end of such month.
5. Every registered non-resident taxable person shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, within twenty days after the end of a calendar month or within seven days after the last day of the period of registration specified under sub-section (1) of section 27, whichever is earlier.
6. ……………………………………………………..
7. Every registered person, who is required to furnish a return under subsection (1) or sub-section (2) or sub-section (3) or sub-section (5), shall pay to the Government the tax due as per such return not later than the last date on which he is required to furnish such return.
8. Every registered person who is required to furnish a return under subsection :- (a)or sub- section
   (b)shall furnish a return for every tax period whether any supplies of goods or services or both have been made during such tax period.”

Para No:- 15. Inter alia Section 39 refers to ‘a return,.. , of inward and outward supplies of goods or services or both..’. The return of outward supplies is in form GSTR 1 and is the return that has been filed by the petitioner. Thus, the argument that GSTR 1 only deals with ‘details’ and hence would not constitute a statutory return is unacceptable and contrary to the scheme of the Act.

Para No: – 16. Learned counsel for the petitioner also attempts to state that the impugned order under Section 80 has been passed even prior to the assessment having framed under Section 73. However, Section 80 makes no reference to an assessment at all. It only talks of turnover that has been selfassessed. In this case, the petitioner has filed the prescribed form setting forth the details of the outward supplies and the question of assessment does not arise. Incidentally, an assessment has also been made proximate to the proceedings for inspection when also the petitioner has acceded to the position that there has been suppression of sales.

Para No:- 17. Accepting the argument of the petitioner would tantamount to a situation wherein a delinquent assessee, one who has omitted to file a return of monthly turnover but has filed the prescribed return reflecting taxable sales, is allowed the benefit under Section 80, of an instalment scheme.

The object of Section 80 is only to benefit an assessee who has been complaint in effecting payment of the admitted tax.
Para No:- 18. In this case, while the petitioner has filed returns it has no paid the tax and hence its barred from obtaining benefit under Section 80. The conclusion as aforesaid is supported by a decision of the Orissa High Court in the case of M/s. P.K. Ores Pvt Ltd @ M/s.PK Minings Pvt Ltd v Commissioner of Sales Tax & another [W.P.(c) No.10335 of 2022 dated 06.05.2022].