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April 16, 2022

Considering Financial Hardship of taxpayer HC Allows GST dues payment In 48 Instalments

by CA Shivam Jaiswal in GST

Considering Financial Hardship of taxpayer HC Allows GST dues payment In 48 Instalments

Facts and Issue of the case

The petitioner M/S Veteran Facility Management Services Pvt. Ltd. is a partnership firm engaged in the business of providing security services. The petitioner is registered under the Goods and Services Act, 2017 bearing GSTIN No. 18AAECV2508H1ZD. Under the law the petitioner firm is required to file monthly return under the GST as per the Form GSTR-1. A stand is taken that the petitioner was providing security services to the outlets of the AIRCEL under a contract agreement but as because AIRCEL itself were out of business, a huge amount of payment is due to the petitioner and because of such loss in business, the petitioner could not pay the required GST dues to the department on time.

In the process there is a default amounting to Rs.2,25,09,077/- for the period of April, 2018 upto September, 2021 along with applicable interest payable under Section 50(1) and penalty under Section 125 of the CGST Act, 2017. As the required tax amount had not been paid, the order of cancellation of registration dated 30.12.2020 was issued by the Superintendent, Guwahati-C-5 as per the provisions of Section 29 of the CGST Act, 2017. Being aggrieved by the order of cancellation of registration, the petitioner submitted an application for revocation of cancellation but the same was also rejected by the order dated 15.04.2021. Being aggrieved, this writ petition is instituted.

Observation of the case

The petitioner firm express their willingness to pay the defaulted tax amount plus the interest and the penalty as may be assessed by the department but because of the precarious financial condition they are unable to pay it in one go and therefore, makes a request that the petitioner be allowed to make the necessary payments in 48 (forty eight) installments.

For the purpose, reference is made to the Circular No. 996/3/2015-CX dated 28.02.2015 of the Under Secretary to the Government of India in the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs.

A reading of paragraph 5 of the Circular dated 28.02.2015 would make it discernable that the Commissioner of GST is empowered and has the discretion of granting sanction to pay arrear of the GST in installments upto maximum of 24 (twenty four) monthly installments and the Chief Commissioners are given the jurisdiction and authority to sanction the payment of the arrears in monthly installments greater than 24 (twenty four) upto a maximum of 36 (thirty six).

The petitioner firm in this writ petition claims that as because the precarious financial condition it would not be possible for them to pay the entire amount due plus the interest and penalty within 36 (thirty six) installments, which is the maximum limit for the Chief commissioner and therefore, seeks to invoke the discretionary power of the Court in allowing them to pay the dues in 48 (forty eight) installments.

Although there may be an inherent power of the Court under Article 226 of the Constitution of India to use a discretion but at the same time when it is statutorily provided by the departmental authorities that the maximum permissible installments be 36 (thirty six), we are of the view that the Court ought not to randomly extend such installments beyond 36 (thirty six) in the guise of exercising discretionary power but at the same time, we also take note that if further installments are not allowed to the petitioner firm, they would be unable to pay the tax due and it may result in a sustenance of the order of cancellation of their registration. If it is so, there would be an end of their business in the present form that they are undertaking and it would also be the end of the Department to have any tax from the petitioners in the form of the present business any further.

Considering the matter in its entirety, we requested Mr. S C Keyal, learned counsel to confer with the authorities in the GST Department whether in the facts and circumstances of the present case, the permissible installments can be extended upto 48 (forty eight). The departmental authorities are fair enough to agree to such proposition. But, however, an apprehension is raised that the past conduct of the petitioner is such that it is not confidence inspiring.

Without taking any specific view on the aforesaid aspect and in order to provide some succor to the petitioner firm so that they can remain in the business they are presently undertaking, it is provided that the amount of Rs.2,58,30,801/- plus the interest and the penalty that may be applicable under the law be evaluated by the department and the assessed amount be determined. The said amount be equally divided by 48 and the monthly amount payable by the petitioner firm be determined and communicated to the petitioner. Upon such determination the petitioner firm shall pay the determined monthly installments within the 7th of every month.

As we are invoking the discretionary power, we further provide that if the petitioner firm do not comply with the requirement of paying the determined monthly installment within the 7th of every month, there shall be a periodical review by the departmental authority every month and in the event of default, the earlier order of cancellation may be revived by the department without any further reference.

The determination of the equal monthly installments to be paid by the petitioner firm be determined by the Assistant Commissioner, Guwahati, Division-2 on or before 28.02.2022 and in doing do, the petitioner firm may also be given a hearing and the petitioner firm shall cooperate with the authority. Upon such determination, the requirement of payment shall start from 1st of March, 2022.

It is needless to say that on the installments being determined and the petitioner firm continuing to pay the installments, the order of cancellation of the registration would have no effect, subject to any default if made by petitioner.

Conclusion

Court ordered to dispose of the Writ petition subject to the conditions stated above.

Veteran-Facility-Management-Services-Pvt-Ltd-Vs-Union-of-india-Gauhati-High-Court

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