Vivek Jalan
Many cases are pending wherein, during the initial years of GST, the taxpayers had issues and technical problems and the GST Authorities also did not have a solution. The cases include few like the following –
A. GSTR 3B return filed without showing an amount as payable in a month and the taxpayers were not guided that Form DRC-03 could be used to pay such an amount. Thus, they paid the same vide next GSTR-3B. Important to note also is that Circular 26/26/2017 in this respect also was issued after quite some time into the GST regime.
B. Taxpayers were automatically migrated, and they could not file returns.
C. Taxpayers clicked the "save" button and not "submit" button while filing GSTR-3B and the same was considered as filed.
In all these cases the taxpayers kept a balance in their GST Cash Ledgers as a prudent measure, but the GST Authorities have raised demands for interest as they have not considered the payments in GST Cash Ledger as a valid tax payment. These cases are being contested in different forums.
In one such case, the matter was remanded to the Commissioner to pass orders after hearing but the same was referred to the AC. AC is not Commissioner as was held by The Hon'ble Telangana High Court in the case of BHUMANA RAMACHANDRA REDDY Vs UNION OF INDIA [2023-VIL-709-TEL]. When a High Court specifically directs a commissioner to pass orders, then he cannot delegate to the AC. In case it is done, then the ACs Order will be invalid. This is irrespective of Circular No.3/3/2017-GST, dated 05.07.2017 considering AC as a proper officer under CGST Act, 2017, as section 2(24) of CGST Act, 2017 mentions that the ‘Commissioner' means the Commissioner of Central Tax and includes the Pr. Commissioner of Central Tax and the Commissioner of Integrated Tax, hence, Assistant Commissioner is not a Commissioner. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the department and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assesses and chaos in administration of tax laws.
Now the ball is in The Commissioner's court who has to pass an order in this regard. This case might possibly could be the beginning of the end of such cases. The GST law Committee may also consider this issue and issue suitable clarifications for better clarity.
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