# M/s Harbir Singh Contractor & Anr v. Union of India & Ors

- **Citation:** (2023) 12 ILRA 304
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-26
- **Case number:** Writ Tax No. 454 of 2020
- **Bench:** Saumitra Dayal Singh, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-harbir-singh-contractor-anr-v-union-of-india-ors-49567
- **Pages:** 22

## Headnote

A. Taxation Law--The Constitution of
India, 1950-Article 226 - The Central
Goods
and
Services
Tax
Act,
2017Sections 22, 25(1) & 139---Writ petition
seeking a direction upon the respondent
revenue authorities to treat the registration
granted (subsequently), to the petitioner on
23.10.2017 for the activity "Manpower Supply
Services", under the C.G.S.T Act, 2017, with
retrospective effect from 1.7.2017 i.e the date
from when the original registration was granted
to the petitioner no.1--- Petitioner no.1 entitled
to the relief such that the second registration
granted to him be treated to be effective from
the date 1.7.2017, on a deemed basis. In
absence of lack of bonafides and in face of the
established machine error, grant of that relief
has become imperative for non-negotiable
justice considerations. (Para 37)

B. The substantive relief of benefit of ITC
arising to the petitioner no.2 on the sales
performed by the petitioner no.1 from 1.7.2017
till 31.8.2017 would hinge on the further
conduct of petitioner no.1 regarding deposit of
tax on the due date while filing the return
relevant to the revised Tax Invoices that came
to be issued by the petitioner on 23.10.2017 i.e.
upon the fresh registration being granted. If the
due tax on the revised Tax Invoices had been
deposited along with the return for the month of
October 2017, the respondent including the
GSTN shall make appropriate arrangement to
allow for availment of the Input Tax Credit to
petitioner no.2 against such revised Tax
Invoices. If however there were delays or noncompliance to that extent, the relief being
claimed
by
petitioner
no.1
shall
stand
accordingly modified, consequent to that due
verification, the disclosure made in GSTR-1 of
petitioner no.1 for the month of October 2017
would be modified by GSTN to reflect on the
corresponding GSTR-2A, relevant to petitioner
no.2 for the period July to September 2017 and
all consequences to arise to the petitioners. To
that extent, the order passed by the Authority
for Advance Ruling may not stand in the way of
the petitioners.

Petition allowed. (E-15)

List of Cases cited:
12 All. M/s Harbir Singh Contractor & Anr. Vs. Union of India & Ors.
305

## Text

_Characters 0–39,994 of 75,213. This is a partial read: ask again with offset=39994 for what follows._

304 INDIAN LAW REPORTS ALLAHABAD SERIES
deduction contemplated under Rule 9(1)(e)
of the Rules."

7. The general rule of law in
taxing statutes is that in case of any
doubt the benefit should be given to the
assessee.
However,
in
case
of
exemption and deduction to be given, a
stricter approach may be followed, as
per catena of judgments of the Supreme
Court, to examine whether the assessee
is eligible for such benefit. In the
present case, there is no factual dispute
of goods having been imported from
outside the State of U.P. and, therefore,
the assessee clearly qualifies for the
said benefit. In light of the same, the
question of law no. 1 is answered in
favour of the assessee and against the
Department.

8. In light of the observations made
above,
the
revision
application
is
dismissed.
----------
(2023) 12 ILRA 304
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SURENDRA SINGH-I, J.

Writ Tax No. 454 of 2020

M/s Harbir Singh Contractor & Anr.
 ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shubham Agrawal, Ms. Sanyukta Singh

Counsel for the Respondents:
A.S.G.I., Sri Ashok Singh, Sri Krishna Agarawal,
Sri Ramesh Chandra Shukla
A. Taxation Law--The Constitution of
India, 1950-Article 226 - The Central
Goods
and
Services
Tax
Act,
2017Sections 22, 25(1) & 139---Writ petition
seeking a direction upon the respondent
revenue authorities to treat the registration
granted (subsequently), to the petitioner on
23.10.2017 for the activity "Manpower Supply
Services", under the C.G.S.T Act, 2017, with
retrospective effect from 1.7.2017 i.e the date
from when the original registration was granted
to the petitioner no.1--- Petitioner no.1 entitled
to the relief such that the second registration
granted to him be treated to be effective from
the date 1.7.2017, on a deemed basis. In
absence of lack of bonafides and in face of the
established machine error, grant of that relief
has become imperative for non-negotiable
justice considerations. (Para 37)

B. The substantive relief of benefit of ITC
arising to the petitioner no.2 on the sales
performed by the petitioner no.1 from 1.7.2017
till 31.8.2017 would hinge on the further
conduct of petitioner no.1 regarding deposit of
tax on the due date while filing the return
relevant to the revised Tax Invoices that came
to be issued by the petitioner on 23.10.2017 i.e.
upon the fresh registration being granted. If the
due tax on the revised Tax Invoices had been
deposited along with the return for the month of
October 2017, the respondent including the
GSTN shall make appropriate arrangement to
allow for availment of the Input Tax Credit to
petitioner no.2 against such revised Tax
Invoices. If however there were delays or noncompliance to that extent, the relief being
claimed
by
petitioner
no.1
shall
stand
accordingly modified, consequent to that due
verification, the disclosure made in GSTR-1 of
petitioner no.1 for the month of October 2017
would be modified by GSTN to reflect on the
corresponding GSTR-2A, relevant to petitioner
no.2 for the period July to September 2017 and
all consequences to arise to the petitioners. To
that extent, the order passed by the Authority
for Advance Ruling may not stand in the way of
the petitioners.

Petition allowed. (E-15)

List of Cases cited:
12 All. M/s Harbir Singh Contractor & Anr. Vs. Union of India & Ors.
305
1. Sangram Singh Vs Election Tribunal, AIR
1955 SC 425

2. Jai Jai Ram Manohar Lal Vs National Building
Material Supply, Gurgaon, AIR 1969 SC 1267

3. The St. of Punjab & anr. Vs Shamlal Murari &
anr., (1976) 1 SCC 719

4. Saiyad Mohammad Bakar El-Edroos Vs
Abdulhabib Hasan Arab & ors., (1998) 4 SCC
343

(Delivered by Hon'ble Saumitra Dayal
Singh, J. & Hon'ble Surendra Singh-I, J.)

1. Heard Mr. Shubham Agrawal along
with Ms. Sanyukta Singh, learned counsel
for the petitioners; Shri Krishna Agarwal,
learned counsel for Central Board of
Indirect Taxes & Customs (CBIC) and
Assistant Commissioner, Central GST and
Shri Ashok Singh, learned counsel for
Union of India, GST Council and Goods &
Services Tax Network.

2. Present writ petition has been filed
by petitioner no.1, primarily to seek a
direction upon the respondent revenue
authorities to treat the registration granted
(subsequently),
to
the
petitioner
on
23.10.2017 for the activity "Manpower
Supply Services", under the Central Goods
and Services Tax Act, 2017 (hereinafter
referred to as the 'Act') bearing registration
no.
09AVKPS1666H3Z0
(hereinafter
referred to as the 'new registration'), with
retrospective effect from 1.7.2017 i.e the
date from when the original registration
was granted to the petitioner no.1 bearing
registration
no.
09AVKPS1666H2Z1
(hereinafter
referred
to
as
the
'old
registration').

3. Challenge has also been raised to
the order passed by Authority for Advance
Ruling dated 17.12.2019, passed at the
instance of petitioner no.2 (M/s Vivo
Mobile India Private Limited), to the extent
the said authority has refused to grant
benefit of Input Tax Credit (ITC) that may
have arisen against the original Tax
Invoices issued against old registration,
during July 2017 and August 2017 as are
supported by the revised Tax Invoices (for
the same transactions) issued by petitioner
no.1, under its new registration.

4. The facts are undisputed. Prior to
enforcement of the Act, petitioner no.1
(M/s
Harbir
Singh
Contractor)
was
registered under the Finance Act, 1994
(hereinafter referred to as the 'Service Tax
law') for supply of "Manpower Supply
Services". Upon enforcement of the Act, by
virtue of operation of law namely Section
139 of the Act, the petitioner no.1
provisionally auto-migrated under the Act.
At the same time, by virtue of Section 22
read with Section 25 (1) of the Act, the
petitioner no.1 was obligated to seek a
fresh registration under the Act. It is here
that the dispute arose. For ready reference,
the provision of Section 139, 22 (1) & (2)
and 25(1) of the Act are quoted below:

"139.
Migration
of
existing
taxpayers.- (1) On and from the appointed
day, every person registered under any of
the existing laws and having a valid
Permanent Account Number shall be issued
a certificate of registration on provisional
basis, subject to such conditions and in
such form and manner as may be
prescribed, which unless replaced by a
final certificate of registration under subsection (2), shall be liable to be cancelled if
the conditions so prescribed are not
complied with.

(2) The final certificate of registration
shall be granted in such form and manner
306 INDIAN LAW REPORTS ALLAHABAD SERIES
and subject to such conditions as may be
prescribed.

(3) The certificate of registration
issued to a person under sub-section (1)
shall be deemed to have not been issued if
the said registration is cancelled in
pursuance of an application filed by such
person that he was not liable to registration
under section 22 or section 24."

22. Persons liable for registration.-
(1) Every supplier shall be liable to be
registered under this Act in the State or
Union territory, other than special category
States, from where he makes a taxable
supply of goods or services or both, if his
aggregate turnover in a financial year
exceeds twenty lakh rupees:

Provided that where such person
makes taxable supplies of goods or services
or both from any of the special category
States, he shall be liable to be registered if
his aggregate turnover in a financial year
exceeds ten lakh rupees.

1[Provided
further
that
the
Government may, at the request of a special
category State and on the recommendations
of the Council, enhance the aggregate
turnover referred to in the first proviso
from ten lakh rupees to such amount, not
exceeding twenty lakh rupees and subject
to such conditions and limitations, as may
be so notified.]

2[Provided also that the Government
may, at the request of a State and on the
recommendations of the Council, enhance
the aggregate turnover from twenty lakh
rupees to such amount not exceeding forty
lakh rupees in case of supplier who is
engaged exclusively in the supply of goods,
subject to such conditions and limitations,
as may be notified.

Explanation.--For the purposes of this
sub-section, a person shall be considered to
be engaged exclusively in the supply of
goods even if he is engaged in exempt
supply of services provided by way of
extending deposits, loans or advances in so
far as the consideration is represented by
way of interest or discount.]

(2) Every person who, on the day
immediately preceding the appointed day,
is registered or holds a licence under an
existing law, shall be liable to be registered
under this Act with effect from the
appointed day.

Section
25.
Procedure
for
registration.- (1) Every person who is
liable to be registered under section 22 or
section 24 shall apply for registration in
every such State or Union territory in
which he is so liable within thirty days from
the date on which he becomes liable to
registration, in such manner and subject to
such conditions as may be prescribed:

Provided that a casual taxable person
or a non-resident taxable person shall
apply for registration at least five days
prior to the commencement of business.

3[Provided further that a person
having a unit, as defined in the Special
Economic Zones Act, 2005, (28 of 2005) in
a Special Economic Zone or being a
Special Economic Zone developer shall
have to apply for a separate registration, as
distinct from his place of business located
outside the Special Economic Zone in the
same State or Union territory.]

Explanation.--Every
person
who
makes a supply from the territorial waters
of India shall obtain registration in the
coastal State or Union territory where the
nearest point of the appropriate baseline is
located.

(2) A person seeking registration
under this Act shall be granted a single
registration in a State or Union territory:

4[Provided that a person having
multiple places of business in a State or
Union territory may be granted a separate
registration for each such place of
12 All. M/s Harbir Singh Contractor & Anr. Vs. Union of India & Ors.
307
business, subject to such conditions as may
be prescribed.]

(3) A person, though not liable to be
registered under section 22 or section 24
may get himself registered voluntarily, and
all provisions of this Act, as are applicable
to a registered person, shall apply to such
person.

(4) A person who has obtained or is
required
to
obtain
more
than
one
registration, whether in one State or Union
territory or more than one State or Union
territory shall, in respect of each such
registration, be treated as distinct persons
for the purposes of this Act.

(5) Where a person who has obtained
or is required to obtain registration in a
State or Union territory in respect of an
establishment, has an establishment in
another State or Union territory, then such
establishments
shall
be
treated
as
establishments of distinct persons for the
purposes of this Act.

(6) Every person shall have a
Permanent Account Number issued under
the Income-tax Act, 1961 (43 of 1961) in
order
to
be
eligible
for
grant
of
registration:

Provided that a person required to
deduct tax under section 51 may have, in
lieu of a Permanent Account Number, a Tax
Deduction and Collection Account Number
issued under the said Act in order to be
eligible for grant of registration.

5[(6A) Every registered person shall
undergo authentication, or furnish proof of
possession of Aadhaar number, in such
form and manner and within such time as
may be prescribed:

Provided that if an Aadhaar number is
not assigned to the registered person, such
person shall be offered alternate and viable
means of identification in such manner as
Government may, on the recommendations
of the Council, prescribe:

Provided further that in case of failure
to undergo authentication or furnish proof
of possession of Aadhaar number or furnish
alternate
and
viable
means
of
identification, registration allotted to such
person shall be deemed to be invalid and
the other provisions of this Act shall apply
as if such person does not have a
registration.

6(6B) On and from the date of
notification, every individual shall, in order
to be eligible for grant of registration,
undergo authentication, or furnish proof of
possession of Aadhaar number, in such
manner as the Government may, on the
recommendations of the Council, specify in
the said notification:

Provided that if an Aadhaar number is
not assigned to an individual, such
individual shall be offered alternate and
viable means of identification in such
manner as the Government may, on the
recommendations of the Council, specify in
the said notification.

7[(6C) On and from the date of
notification, every person, other than an
individual, shall, in order to be eligible for
grant
of
registration,
undergo
authentication,
or
furnish
proof
of
possession of Aadhaar number of the
Karta, Managing Director, whole time
Director,
such
number
of
partners,
Members of Managing Committee of
Association, Board of Trustees, authorised
representative, authorised signatory and
such other class of persons, in such
manner, as the Government may, on the
recommendations of the Council, specify in
the said notification:

Provided that where such person or
class of persons have not been assigned the
Aadhaar Number, such person or class of
persons shall be offered alternate and
viable means of identification in such
manner as the Government may, on the
308 INDIAN LAW REPORTS ALLAHABAD SERIES
recommendations of the Council, specify in
the said notification.

8[(6D) The provisions of sub-section
(6A) or sub-section (6B) or sub-section
(6C) shall not apply to such person or class
of persons or any State or Union territory
or part thereof, as the Government may, on
the recommendations of the Council,
specify by notification.

Explanation.-- For the purposes of this
section, the expression "Aadhaar number"
shall have the same meaning as assigned to
it in clause (a) of section 2 of the Aadhaar
(Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Act, 2016
(18 of 2016).]

(7)
Notwithstanding
anything
contained in sub-section (6), a non-resident
taxable person may be granted registration
under sub-section (1) on the basis of such
other documents as may be prescribed.

(8) Where a person who is liable to be
registered under this Act fails to obtain
registration, the proper officer may, without
prejudice to any action which may be taken
under this Act or under any other law for
the time being in force, proceed to register
such person in such manner as may be
prescribed.

(9)
Notwithstanding
anything
contained in sub-section (1),--

(a) any specialised agency of the
United Nations Organisation or any
Multilateral
Financial
Institution
and
Organisation notified under the United
Nations (Privileges and Immunities) Act,
1947 (46 of 1947), Consulate or Embassy
of foreign countries; and

(b) any other person or class of
persons, as may be notified by the
Commissioner, shall be granted a Unique
Identity Number in such manner and for
such purposes, including refund of taxes on
the notified supplies of goods or services or
both received by them, as may be
prescribed.

(10) The registration or the Unique
Identity Number shall be granted or
rejected after due verification in such
manner and within such period as may be
prescribed.

(11) A certificate of registration shall
be issued in such form and with effect from
such date as may be prescribed.

(12) A registration or a Unique
Identity Number shall be deemed to have
been granted after the expiry of the period
prescribed under sub-section (10), if no
deficiency has been communicated to the
applicant within that period."

5. Also, the Act introduced the
concept of Input Service Distributor
(hereinafter referred to as the 'ISD').
Section 2(61) of the Act reads as below:

"2(61) "Input Service Distributor"
means an office of the supplier of goods or
services or both which receives tax invoices
issued under section 31 towards the receipt
of input services and issues a prescribed
document for the purposes of distributing
the credit of central tax, State tax,
integrated tax or Union territory tax paid
on the said services to a supplier of taxable
goods or services or both having the same
Permanent Account Number as that of the
said office;

 (emphasis supplied)

6. Then, ISD may obtain a separate
registration for that particular activity, by
virtue of Section 24(viii) of the Act read
with the proviso to Rule 8 of Central Goods
and Services Tax Rules, 2017 (hereinafter
referred to as the 'Rules'). For ready
reference, the provisions of Section 24(viii)
of the Act read as under:
12 All. M/s Harbir Singh Contractor & Anr. Vs. Union of India & Ors.
309

"24.
Compulsory
registration
in
certain cases- Notwithstanding anything
contained in sub-section (1) of the section
22, the following categories of persons
shall be required to be registered under this
Act-

...

(viii)
Input
Service
Distributor,
whether or not separately registered under
this

Act;

..."

Rule 8 of the Rules is in the following
terms:

8.
Application
for
Registration.-
(1)Every person, other than a non-resident
taxable person, a person required to deduct
tax at source under section 51, a person
required to collect tax at source under
section 52 and a person supplying online
information
and
database
access
or
retrieval services from a place outside
India to a non-taxable online recipient
referred to in section 14 of the Integrated
Goods and Services Tax Act, 2017 (13 of
2017) who is liable to be registered under
sub-section (1) of section 25 and every
person seeking registration under subsection (3) of section 25 (hereafter in this
Chapter referred to as ―the applicant‖)
shall, before applying for registration,
declare his Permanent Account Number,
mobile number, e-mail address, State or
Union territory in Part A of FORM GST
REG-01 on the common portal, either
directly or through a Facilitation Centre
notified by the Commissioner:

9[***]

10[Provided] that every person being
an Input Service Distributor shall make a
separate application for registration as
such Input Service Distributor.

(2) (a) The Permanent Account
Number shall be validated online by the
common
portal
from
the
database
maintained by the Central Board of Direct
Taxes.

(b) The mobile number declared under
sub-rule (1) shall be verified through a
onetime password sent to the said mobile
number; and

(c) The e-mail address declared under
sub-rule (1) shall be verified through a
separate one-time password sent to the said
e-mail address.

(3) On successful verification of the
Permanent
Account
Number,
mobile
number and email address, a temporary
reference number shall be generated and
communicated to the applicant on the said
mobile number and e-mail address.

(4) Using the reference number
generated under sub-rule (3), the applicant
shall electronically submit an application
in Part B of FORM GST REG-01, duly
signed or verified through electronic
verification code, along with the documents
specified in the said Form at the common
portal, either directly or through a
Facilitation
Centre
notified
by
the
Commissioner.

11 [(4A) Every application made under
rule (4) shall be followed by -

(a)
biometric-based
Aadhar
authentication and taking photograph,
unless exempted under sub-section (6D) of
section
25,
if
he
has
opted
for
authentication of Aadhar number; or

(b)
taking
biometric
information,
photograph and verification of such other
KYC documents, as notified, unless the
applicant is exempted under sub-section
(6D) of section 25, if he has opted not to
get Aadhar authentication done, of the
applicant where the applicant is an
individual or of such individual in relation
to the applicant as notified under subsection (6C) of section 25 where the
applicant is not an individual, along with
the verification of the original copy of the
310 INDIAN LAW REPORTS ALLAHABAD SERIES
documents uploaded with the application in
FORM GST REG-01 at one of the
Facilitation
Centres
notified
by
the
Commissioner for the purpose of this subrule and the application shall be deemed to
be complete only after completion of the
process laid down under this sub-rule.]

(5) On receipt of an application under
sub-rule (4), an acknowledgement shall be
issued electronically to the applicant in
FORM GST REG-02.

(6) A person applying for registration
as a casual taxable person shall be given a
temporary
reference
number
by
the
common portal for making advance deposit
of tax in accordance with the provisions of
section 27 and the acknowledgement under
sub-rule (5) shall be issued electronically
only after the said deposit."

7. It is also admitted that ISD was not
required to deposit any tax. Only interest
and penalties were leviable for infractions
attributable solely to the activity of
distribution of ITC and filing of its returns
by the ISD. The only return required to be
filed on behalf of ISD was GSTR-6 being a
return for distribution of ISD. For ready
reference, provisions of Rule 65 of the
Rules:

65. Form and manner of submission
of return by an Input Service Distributor.-
Every Input Service Distributor shall, on
the basis of details contained in FORM
GSTR-6A, and where required, after
adding, correcting or deleting the details,
furnish electronically the return in FORM
GSTR-6, containing the details of tax
invoices on which credit has been received
and those issued under section 20, through
the common portal either directly or from a
Facilitation
Centre
notified
by
the
Commissioner."

8. It is also a fact that the registration
for ISD and that for main/business activity
of supply of goods or services had to be
made on separate applications, both on
Form GST REG-01. Here both parties
before the Court appear to have erred. As
happens in litigation, both attribute the
critical
mistake
and
therefore
the
consequences, to the conduct of the other.
At the same time, upon hearing counsel for
the parties and upon perusal of the record
including documents annexed to the
Supplementary Counter Affidavit filed by
the revenue (to which there is no rebuttal),
it does appear, while filing the original
Form GST REG-01 (relevant to the old
registration), the petitioner no.1 described
his reason to obtain that registration as
"ISD". As to the other reason to obtain that
registration, though the revenue disputes, a
copy of the application form annexed to the
Supplementary Counter Affidavit filed by
the revenue itself reads - "Others (Not
covered above) Specify" and the words
"Documents attached", find mention below
that description. Thus, that is inconclusive
of any other details having been filled up
by the petitioner, to obtain registration.

9. Yet, the disclosure made by
petitioner no.1 at that stage is clearly
established from the document annexed as
Annexure SCA-8 to the Supplementary
Counter
Affidavit,
described
as
Registration Certificate on Form GST
REG-06. That document pertaining to the
original
registration
granted
to
the
petitioner first discloses the tax-payer
status to be Input Service Distributor
(ISD). Yet it goes on to narrate and thus
record the description of goods and
services being dealt with by petitioner
no.1. That part of the Registration
Certificate reads as below:
12 All. M/s Harbir Singh Contractor & Anr. Vs. Union of India & Ors.
311

"Goods

Services
HS
N
Descripti
on
HSN
Description

004400
60
MANPOWER
RECRUITME
NT
AGENCY"

10. In such facts, we are persuaded to
accept the contention advanced by learned
counsel for the petitioners that besides
disclosing the non-business activity of ISD,
the petitioner no. 1 had also disclosed his
business activity of Manpower Recruitment
Agency, at the stage of obtaining the
original registration. In the above facts it is
established
from
a
perusal
of
the
documents produced by the revenue, that
the web portal devised and operated for the
benefit of the revenue authorities by the
GSTN did allow petitioner no.1 to fill up
details and thus disclose to the registering
authority his main/taxable business activity
(also), while filling up his original
registration form of GST REG-01. In fact
such disclosure was made.

11. Not only petitioner no.1 made
such disclosure, it is also an undisputed fact
that the revenue authorities acted on the
same inasmuch as they issued notice on
18.11.2019 to petitioner no.1, seeking to
cancel his original registration solely for
the reason of non-filing of the monthly
return on the Form GSTR-3B. For ready
reference, the contents of that notice reads
as below:

"Reference
Number:
YD010509193A0011
Date:18-Nov-2019

To

GSTIN: 09AVKPS1666H2Z1

Name: HARBIR SINGH

Address: F-20, Site-IV Industrial

Area,
Greater
Noida,
Gautam

Buddha Nagar, 201310

Notice to return defaulter u/s 46 for
not filing returnable

Financial Year
Tax Period/s
2017-18
JUL-2017,
AUG-2017,
SEP-2017,
OCT-2017,
NOV-2017, DEC-2017,
JAN-2018,
FEB-2018,
MAR-2018
2018-19
APR-2018, MAY-2018,
JUN-2018,
AUG-2018,
SEP-2018,
OCT-2018,
NOV-2018, DEC-2018,
JAN-2019,
FEB-2019,
MAR-2019
2019-20
APR-2019, MAY-2019,
JUN-2019, JULY-2019,
AUG-2019, SEP-2019

Type of Return
GSTR-3B

1. Being a registered taxpayer, you are
required to furnish return/s for the supplies
made or received and to discharge
resultant tax liability for the aforesaid tax
period/s by due date. It has been noticed
that you have filed the said return/s till
date.

2. You are, therefore, requested to
furnish the said return/s within 15 days
failing which the tax liability will be
assessed u/s 62 of the Act, based on the
relevant material available with this office.
Please note that in addition to tax so
assessed, you will also be liable to pay
interest and penalty as per provisions of the
Act.
312 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Please note that no further
communication will be issued for assessing
the liability.

4. The notice shall be deemed to have
been withdrawn in case the return/s
referred above, is filed by you before issue
of the assessment order.

DESIGNATION: SUPERINTENDENT

C:GAUTAM BUDDHA NAGAR > D:
DIVISION I GAUTAM BUDDHA NAGAR
> R: RANGE - 5

CENTRAL BOARD OF INDIRECT
TAXES AND CUSTOMS"

12. In the context of the Act, the
monthly return on the Form GSTR-3B is
mandated to be filed in terms of Rule 61 of
the Rules. For ready reference, provisions
of Rule 61 of the Rules reads as below:

"61. Form and manner of furnishing
of return.- (1) Every registered person,
other than a person referred to in section
14 of the Integrated Cools and Services Tax
Act, 2017 or an Input Service Distributor
or a non-resident taxable person or a
person paying tax under section section 51
or, as the case may be, under section 52
shall furnish a return specified under subsection (1) of section 39 in FORM GSTR-3
electronically through the common portal
either directly through a Facilitation
Centre notified by the Commissioner.

(2) Part A of the return under sub-rule
(1) shall be electronically generated on the
basis of Information furnished through
FORM GSTR-1, FORM GSTR-2 and based
on other liabilities of preceding tax
periods..

(3) Every registered person furnishing
the return under sub-rule (1) shall, subject
to the provisions of section 49, discharge
his liability towards tax, interest, penalty,
files or any other amount payable under the
Act or the provisions of this Chapter by
debiting the electronic cash ledger or
electronic credit ledger and include the
details in Part B of the return in FORM
GSTR-3.

(4) A registered person, claiming
refund of any balance in the electronic cash
ledger in accordance with the provisions of
sub-section (6) of section 49, may claim
such refund in Part B of the return in
FORM GSTR-3 and such return shall be
deemed to be an application filed under
section 54.

(5) Where the time limit for furnishing
of details in FORM GSTR-1 under section
37 or in FORM GSTR-2 under section 38
has been extended, the return specified in
sub-section (1) of section 39 shall in such
manner and subject to such conditions as
the Commissioner may by notification,
specify, be furnished in FORM GSTR-38
electronically through the common portal,
either directly or through a Facilitation
Centre notified by the Commissioner:

Provided that where a return in FORM
GSTR-38 is required to be furnished by a
person referred to in sub-male (1) then
such person shall not be required to furnish
the return in FORM GSTR-3.

*[(6) Every registered person other
than a person referred to in section 14 of
the Integrated Goods and Services Tax Act,
2017 (13 of 2017) or an Input Service
Distributor or a non-resident taxable
person or a person paying tax under
section 10 or section 51 or, as the case may
be, under section 52 shall furnish a return
in FORM GSTR-38, electronically through
the common portal either directly or
through a Facilitation Centre notified by
the Commissioner, an or before the
twentieth day of the month succeeding such
tax period:

Provided that for taxpayers having an
aggregate tumover of up to five crore
rupees in the previous financial year, whose
12 All. M/s Harbir Singh Contractor & Anr. Vs. Union of India & Ors.
313
principal place of business is in the States
of Chhattisgarh, Madhya Pradesh, Gujarat,
Maharashtra, Kamataka, Goa, Kerala,
Tamil Nadu. Telangana, Andhra Pradesh,
the Union territories of Daman and Diu
and Dadra and Nagar Haveli, Puducherry.
Andaman
and
Nicobar
Islands
or
Lakshadweep, the return in FORM GSTR3B of the said rules for the months of
October, 2020 to March, 2021 shall be
furnished
electronically
through
the
common portal, on or before the twentysecond day of the month succeeding such
month:

Provided further that for taxpayers
having an aggregate turnover of up to five
crore rupees in the previous financial year,
whose principal place of business is in the
States of Himachal Pradesh, Punjab,
Uttarakhand, Haryana, Rajasthan, Uttar
Pradesh, Bihar, Sikkim Arunachal Pradesh,
Nagaland, Manipur, Mizoram, Tripura,
Meghalaya,
Assam,
West
Bengal,
Jharkhand or Odisha, the Union territories
of
Jammu
and
Kashmir,
Ladakh,
Chandigarh or Delhi, the return in FORM
GSTR-3B of the said rules for the months of
October, 2020 to March, 2021 shall be
furnished
electronically
through
the
common portal, on or before the twenty
fourth day of the month succeeding such
month."

13. Thus, Form GSTR-3B is the form
for monthly return, required to be filed by
every registered person except persons
referred to Section 14 of the Integrated
Goods and Services Tax Act, 2017 or Input
Service Distributor (ISD). That coupled
with the statutory liability of ISD to file
return on Form GSTR-6 and 6A under Rule
65 of the Rules, it is crystal clear that at the
stage
of
issuance
of
notice
dated
18.11.2019, the revenue authorities were of
the opinion that petitioner no.1 was not
entitled to continuance of his registration
for business activity (and not ISD), for
reason of not filing his monthly returns for
business/taxable activity of "Manpower
Supply Service". It is undoubtable, that in
absence of any legal requirement on a ISD
to file its monthly return on Form GSTR3B , the ISD registration could never be
cancelled for reason of not filing such
returns. Here reference may be made to
provisions of Sections 4, 6, 39, 44 and 45
of the Act. They read as below:

4. Appointment of officers.- (1) The
Board may, in addition to the officers as
may be notified by the Government under
section 3, appoint such persons as it may
think fit to be the officers under this Act. (2)
Without prejudice to the provisions of subsection (1), the Board may, by order,
authorise any officer referred to in clauses
(a) to (h) of section 3 to appoint officers of
central tax below the rank of Assistant
Commissioner of central tax for the
administration of this Act.

6. Authorisation of officers of State
tax or Union territory tax as proper officer
in certain circumstances.- (1) Without
prejudice to the provisions of this Act, the
officers appointed under the State Goods
and Services Tax Act or the Union Territory
Goods and Services Tax Act are authorised
to be the proper officers for the purposes of
this Act, subject to such conditions as the
Government shall, on the recommendations
of the Council, by notification, specify.

(2) Subject to the conditions specified
in the notification issued under sub- section
(1),-

(a) where any proper officer issues an
order under this Act, he shall also issue an
order under the State Goods and Services
Tax Act or the Union Territory Goods and
Services Tax Act, as authorised by the State
Goods and Services Tax Act or the Union
314 INDIAN LAW REPORTS ALLAHABAD SERIES
Territory Goods and Services Tax Act, as
the case may be, under intimation to the
jurisdictional officer of State tax or Union
territory tax;

(b) where a proper officer under the
State Goods and Services Tax Act or the
Union Territory Goods and Services Tax
Act has initiated any proceedings on a
subject matter, no proceedings shall be
initiated by the proper officer under this
Act on the same subject matter.

(3) Any proceedings for rectification,
appeal and revision, wherever applicable,
of any order passed by an officer appointed
under this Act shall not lie before an officer
appointed under the State Goods and
Services Tax Act or the Union Territory
Goods and Services Tax Act.

39. 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, manner and within such time 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 as may be prescribed:

Provided that the Government may, on
the recommendations of the Council, notify
certain classes of registered persons who
shall furnish return for every quarter or
part thereof, subject to such conditions and
safeguards as may be specified therein.

(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, within
thirteen 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)
The
Commissioner
may,
for
reasons to be recorded in writing, by
notification, extend the time limit for
furnishing the returns under this section for
such class of registered persons as may be
specified therein:

Provided that any extension of time
limit notified by the Commissioner of State
tax or Union territory tax shall be deemed
to be notified by the Commissioner.

(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: Provided
that
the
Government
may,
on
the
recommendations of the Council, notify
certain classes of registered persons who
12 All. M/s Harbir Singh Contractor & Anr. Vs. Union of India & Ors.
315
shall pay to the Government the tax due or
part thereof as per the return on or before
the last date on which he is required to
furnish such return, subject to such
conditions and safeguards as may be
specified therein.

Provided that every registered person
furnishing return under the proviso to subsection (1) shall pay to the Government, the
tax due taking into account inward and
outward supplies of goods or services or
both, input tax credit availed, tax payable
and such other particulars during a month,
in such form and manner, and within such
time, as may be prescribed.

(8) Every registered person who is
required to furnish a return under subsection (1) or sub-section (2) shall furnish
a return for every tax period whether or not
any supplies of goods or services or both
have been made during such tax period.

(9) Subject to the provisions of
sections 37 and 38, if any registered person
after furnishing a return under sub-section
(1) or sub- section (2) or sub-section (3) or
sub-section (4) or sub-section (5) discovers
any omission or incorrect particulars
therein, other than as a result of scrutiny,
audit, inspection or enforcement activity by
the tax authorities, he shall rectify such
omission or incorrect particulars in the
return to be furnished for the month or
quarter during which such omission or
incorrect particulars are noticed, subject to
payment of interest under this Act:

Provided that no such rectification of
any omission or incorrect particulars shall
be allowed after the due date for furnishing
of return for the month of September or
second quarter following the end of the
financial year, or the actual date of
furnishing of relevant annual return,
whichever is earlier.

(10) A registered person shall not be
allowed to furnish a return for a tax period
if the return for any of the previous tax
periods has not been furnished by him."

44. Annual return. - (1) Every
registered person, other than an Input
Service Distributor, a person paying tax
under section 51 or section 52, a casual
taxable person and a non-resident taxable
person, shall furnish an annual return for
every financial year electronically in such
form and manner as may be prescribed on
or before the thirty-first day of December
following the end of such financial year:

Provided that the Commissioner may,
on the recommendations of the Council and
for reasons to be recorded in writing, by
notification, extend the time limit for
furnishing the annual return for such class
of registered persons as may be specified
therein:

Provided further that any extension of
time limit notified by the Commissioner of
State tax or the Commissioner of Union
territory tax shall be deemed to be notified
by the Commissioner.

(2) Every registered person who is
required to get his accounts audited in
accordance with the provisions of subsection (5) of section 35 shall furnish,
electronically, the annual return under subsection (1) along with a copy of the audited
annual accounts and a reconciliation
statement, reconciling the value of supplies
declared in the return furnished for the
financial year with the audited annual
financial
statement,
and
such
other
particulars as may be prescribed.

Explanation.