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October 5, 2023

Dismissed Writ Petition; Department to make GST Dues Instalment Decision

Dismissed Writ Petition; Department to make GST Dues Instalment Decision

Fact and issue of the case

The writ petition is filed under Article 226 of the Constitution of India for the following reliefs;

To issue a writ, direction, or order in the nature of mandamus commanding the Respondent to stay and revoke the recovery proceedings initiated on the date of 06th May 2023 until a proper hearing is provided to the petitioner by the Respondent

To issue a writ, direction, or order in the nature of mandamus commanding the Respondent to desist from unilaterally and arbitrarily deciding the Tax liabilities without considering the facts and circumstances of the matter.

To issue a writ, direction, or order in the nature of mandamus to the Respondent for the provision of a proper hearing and not to interpret the matter in a literal sense.

To issue a writ, direction, or order in the nature of mandamus to the Respondent for the provision of a window for the payment of tax if further assessed after the hearing with the Respondent in an installment manner as due to the hectic and colossal financial crunch.

To issue a writ, direction, or order in the nature of mandamus or any other writ which this Honourable Court may deem fit and necessary in the circumstances of this matter for the effective implementation of Justice.”

The petitioner after filing GSTR-1 did not file the return in GSTR-3B. It appears that the petitioner was assessed to the GST as per Exts.P1, P1A, P1B, P1C and P1D for a total outstanding amount of more than rupees five Crores. The learned Counsel for the petitioner submits that the assessing authority has not calculated the tax properly and on the basis of wrong calculation, the assessment orders has been passed in respect of which recovery notices Exts. P1, P1A, P1B, P1C and P1D have been issued.

The assessment order has been passed on 28.11.2019. The petitioner has not challenged the assessment order by filing statutory appeals. The petitioner has approached this Court by filing the present writ petition after almost four years from the date of assessment order. This Court does not find this writ petition as maintainable against the assessment order that was passed in 2019.

Observation of the court

In view thereof, the writ petition is dismissed. At this stage the learned Counsel for the petitioner submits that this Court may grant some installments for making payment of the arrears of tax.

Under Section 80 of the CGST Act, there is power vested in the Commissioner to grant upto 12 installments for the payment of arrears of tax. If the petitioner wants to deposit the tax in installments, the petitioner may approach the Commissioner within a period of seven days from today, and then the Commissioner should decide the application within another period of seven days thereafter for granting installments for payment of arrears of tax as assessed by the assessing authority.

With the aforesaid directions, the writ petition is dismissed as above. However, interim order if any, shall continue till a decision is taken by the Commissioner as directed above.

Conclusion

In the result, appeal of the assessee is allowed and ruled in favour of the assessee

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