30-Day Period for Belated Return Filing Under Section 62(2) Is Directory, Not Mandatory

The HC held that the 30-day period prescribed under Section 62(2) for belated filing of returns is directory, not mandatory. Notices under Section 46 for non-filing of regular returns can be issued after the prescribed time, and assessment orders may be passed anytime within the 5-year limitation under Section 62(1). The procedure under Section 62 does not apply to defaults in filing annual returns under Section 44, as Section 44 is not referenced therein. The appeal was disposed of accordingly.

---

---

1. ISSUES PRESENTED and CONSIDERED

• Whether the 30-day period prescribed under Section 62(2) of the Tamil Nadu Goods and Services Tax Act, 2017 (TNGST Act) for filing belated returns after assessment is directory or mandatory.
• Whether the assessee is entitled to benefit under the Amnesty Schemes notified by the Commercial Taxes Department for delayed return filing.
• Whether the extended period for filing belated returns under the proviso to Section 62, as amended by the Finance Act, 2023, applies to the assessee's case.
• Interpretation of Section 62(1) regarding the timeline for passing best judgment assessment orders and the commencement of the 30-day period for filing returns after such assessment.
• Whether the assessee can file returns beyond the 30-day period post-assessment order, particularly during the period between the expiry of the Amnesty Scheme and the commencement of the extended filing period.
• Distinction between assessment and notice procedures for non-filing of regular returns under Section 39 and annual returns under Section 44, and their implications on assessment and filing timelines.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Nature of the 30-day period under Section 62(2) for filing belated returns

Legal Framework and Precedents: Section 62(2) of the TNGST Act provides that if a registered person furnishes a valid return within 30 days of the service of the assessment order passed under Section 62(1), the assessment order shall be deemed withdrawn, subject to payment of interest and late fee. The question is whether this 30-day period is mandatory or directory.

Court's Reasoning: The Court observed that the assessee argued the 30-day period was directory, and the writ court had allowed condonation of delay applications. However, the Court considered the statutory language and context, noting that the proviso permits belated filing within a specified period but does not explicitly mandate strict adherence to the timeline.

Application to Facts: The assessee filed returns beyond the 30-day period (3 days delay for December 2022 and January 2023; approximately 46 days delay for February 2023). The Court found that, given the unique facts and the relatively short delay for two months, condonation of delay was justified.

Conclusion: The Court held that the 30-day period under Section 62(2) is not an absolute bar and condonation of delay can be granted, particularly in cases of minor delay, subject to consequences.

Issue 2: Entitlement to Amnesty Scheme benefits for delayed return filing

Legal Framework: Two Amnesty Schemes were notified by the Commercial Taxes Department, granting one-time amnesty for returns not filed within 30 days from the service of assessment orders issued on or before 28.02.2023, if returns are filed on or before 30.06.2023 with payment of interest and late fee.

Court's Reasoning: The Court noted that the assessment orders in the present case were passed after 28.02.2023, thus falling outside the Amnesty Scheme's scope.

Application to Facts: Since the assessment orders were dated 28.03.2023 and 10.04.2023, the assessee was not eligible for Amnesty benefits despite filing returns before 30.06.2023.

Conclusion: The assessee is not entitled to the Amnesty Scheme benefits due to timing of assessment orders.

Issue 3: Applicability of extended filing period under proviso to Section 62 post Finance Act, 2023 amendment

Legal Framework: The Finance Act, 2023 amended the proviso to Section 62, extending the period for filing belated returns with late fee from 30 days to 60 days from the date of service of assessment order, effective from 01.06.2023.

Court's Reasoning: The Court observed that the amendment's effective date post-dated the assessment orders and the filing dates in question.

Application to Facts: The assessee's returns were filed before 01.06.2023 (except for February 2023 return filed on 24.06.2023), but the assessment orders and filing dates fall within 01.03.2023 to 30.09.2023, a period not covered by the Amnesty Scheme or the extended filing period.

Conclusion: The assessee is not entitled to the extended filing period under the amended proviso as it is effective only from 01.06.2023, and the relevant assessment orders pre-date this.

Issue 4: Interpretation of Section 62(1) regarding timing of best judgment assessment and commencement of 30-day return filing period

Legal Framework: Section 62(1) allows the proper officer to pass a best judgment assessment order within five years from the date specified under Section 44 for furnishing the annual return for the relevant financial year. Section 62(2) provides a 30-day period from service of such assessment order for filing returns.

Court's Reasoning: The State contended that the 30-day period for filing returns under Section 62(2) would commence only after the expiry of the five-year period allowed for passing the best judgment assessment order. The writ court had accepted this view, allowing the assessee to file returns up to 30 days after the end of five years.

The Court disagreed with this interpretation, holding it to be contrary to the scheme of Section 62. The Court emphasized that:

• Section 62 applies notwithstanding Sections 73 and 74.
• Section 62 is triggered by failure to file returns under Section 39 (regular returns) or Section 45 (final return), not annual returns under Section 44.
• Section 46 requires issuance of notice to file returns within 15 days before passing assessment under Section 62.
• The five-year limitation is an outer limit for passing assessment orders, not a waiting period before passing assessment.
• Therefore, the assessing officer may pass assessment at any time within five years, and the 30-day period for filing returns under Section 62(2) begins from the date of service of the assessment order.

Application to Facts: The assessment orders were passed within the five-year period and the assessee was entitled to file returns within 30 days from the date of service of those orders.

Conclusion: The 30-day period for filing returns under Section 62(2) commences immediately upon service of the assessment order and is not deferred until the end of the five-year period. The earlier interpretation that the 30-day period starts only after five years is rejected.

Issue 5: Filing returns during the "no-man's land" period between Amnesty Scheme expiry and extended filing period commencement

Legal Framework: The Amnesty Scheme applied to assessment orders issued on or before 28.02.2023, with returns to be filed by 30.06.2023. The extended filing period under the amended proviso to Section 62 applies from 01.06.2023 onwards.

Court's Reasoning: The Court noted that the assessee's assessment orders were passed after 28.02.2023, and the extended filing period was not yet effective for the relevant returns.

Application to Facts: The assessee's returns for December 2022 and January 2023 were filed 3 days late beyond the 30-day period, and for February 2023, approximately 46 days late.

Conclusion: The assessee falls into a gap period where neither the Amnesty Scheme nor the extended filing period applies. The Court, exercising discretion, granted condonation of delay for the late filing with consequences to follow.

Issue 6: Distinction between non-filing of regular returns under Section 39 and annual returns under Section 44 and its impact on assessment procedure

Legal Framework: Section 62 applies to non-filing of returns under Sections 39 and 45, but not to non-filing of annual returns under Section 44. Section 46 requires issuance of notice for non-filing under Sections 39, 44 or 45.

Court's Reasoning: The Court differentiated two scenarios:

• (a) Non-filing of regular or final returns under Sections 39 or 45, where assessment under Section 62 applies and notice under Section 46 is issued to file returns within 15 days.
• (b) Non-filing of annual returns under Section 44, where a different procedure applies, and Section 62 is not applicable.

The Court observed that the present case falls under scenario (a), with notices issued under Section 46 for non-filing of regular returns, followed by best judgment assessment under Section 62.

Application to Facts: Notices were issued on 27.01.2023, 25.02.2023, and 25.02.2023 for non-filing of returns for December 2022, January 2023, and February 2023 respectively. Assessment orders were passed thereafter.

Conclusion: The assessment orders passed under Section 62 are valid and in accordance with the statutory scheme for non-filing of regular returns. The procedure for non-filing of annual returns is distinct and not applicable here.

---