The Kerala High Court held that the final Order to be passed is in FORM GST ASMT -13 whereas FORM GST DRC-07 is only a summary.
The petitioner, Hash Constructions challenged the appellate order passed by the Joint Commissioner (Appeals) under the Central Goods and Services Tax Act by rejecting the appeals filed by the petitioner being barred by limitation, apart from non-deposit of 1% of the court fees as per the KLBF .
The petitioner submitted that the petitioner could not file monthly returns prescribed under the GST Act for the period April 2018 to May 2019. Therefore, the Assessing Officer, has passed several orders under Section 62 of the GST Act in respect of the said period.
The petitioner urged that the orders passed under Section 62 of the CGST Act 2017 are not appealable orders and the appellate order is in fact the order in FORM GST DRC-07, which is the final order.
The petitioner submitted that the Appellate Authority erred in rejecting his appeal mainly on the ground that those appeals are suffering from uncondonable delay apart from the fact that the petitioner has not paid additional court fees at 1% of the disputed amount.
On the other hand the Government Pleader drew my attention to the provisions of Section 62 of the GST Act and submitted that only in case, in response to notice in FORM GST ASMT-13, the assessee files the return, then only the assessment order is deemed to have been withdrawn. In the case in hand, no such returns are filed and therefore, what is appealable is the assessment order in GST ASMT- 13 and not the recovery proceedings in FORM GST DRC-07.
The single Judge bench of Justice A.M.Badar clarified that after making the assessment on the criteria best of the judgment by the Assessing Officer, a notice is required to be issued to the assessee along with the assessment order.
The court noted that the assessee is granted an opportunity of filing his returns. If such registered person furnishes valid returns in response to the best of the judgment assessment, then such assessment order is deemed to have been withdrawn.
However, despite receipt of assessment order under Section 62 of the Act, the petitioner registered person has not filed any valid return within 30 days from the receipt of the assessment order. This ultimately has resulted in issuance of demand notice in FORM GST DRC-07, mentioning the amount due and payable by the petitioner.
In the light of the said judgment the maximum time frame available for filing an appeal against the assessment order is four months from the date of issuance of the order in FORM GST ASMT-13 but not the date of FORM GST DRC-07.
It is noteworthy that as per sub-rule (1) of Rule 100 of the CGST/SGST Rules, 2017 “The order of assessment made under sub-section (1) of section 62 shall be issued in FORM GST ASMT -13 and a summary thereof shall be uploaded electronically in FORM GST DRC-07”.
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