Case BriefsSupreme Court

Supreme Court: In a major setback to Bharti Airtel Ltd., the Division Bench comprising of A.M. Khanwilkar* and Dinesh Maheshwari, JJ., overturned the decision of the Delhi High Court and barred the company from rectifying its form GSTR-3B to claim GST refund of approx  Rs.923 crores. Finding no merit in the grievance raised by the company, the Bench remarked,

The factum of non-operability of Form GSTR-2A, is flimsy plea. Indeed, if the stated form was operational, the same would have come handy to the respondent for self-assessment regarding eligibility of ITC, but it is a feeble excuse given by the respondent to assail the impugned Circular.

Findings of the High Court

The High Court of Delhi, by the impugned judgment had read down paragraph 4 of the Circular No. 26/26/2017GST dated 29-12-2017 issued by the Commissioner (GST), Central Board of Excise and Customs, to the extent it restricted the rectification of Form GSTR-3B in respect of the period in which the error had occurred. The High Court also allowed the company-respondent to rectify Form GSTR-3B for the period in which error had occurred, i.e., from July to September 2017.

Grievance of the Respondent

The respondent contended that due to repeated technical glitches in the electronic common portal introduced by the Department, during the transition phase from the erstwhile regime to the GST regime, he had submitted its monthly Form GSTR-3B based on estimates, for the relevant period of July to September 2017. The respondent submitted that there had been an excess payment of Rs.923 crores in cash for discharging OTL (Outward Tax Liability). In other words, despite the fact that a bona fide error had occurred for reasons beyond the control of respondent, yet he was unable to correct the mistake in Form GSTR3B for the relevant period due to the restriction imposed by paragraph 4 of the Circular dated 29-12-2017.

Factual Analysis

The Bench observed that the Circular in question was issued by the Board after considering various representations received seeking clarifications on various aspects of return filing such as return filing dates, applicability of quantum of late fee, amendment of errors in submitting/filing of Form GSTR3B and other related queries to ensure uniformity in implementation across field formations. Therefore, the said Circular was not the direction issued by the Commissioner (GST) as such, but it was notifying the decision(s) of the Board taken in exercise of its powers conferred under Section 168(1) of the 2017 Act.

Rejecting the contention of the respondent that due to the failure of the Department he had make payment in cash which had resulted in payment of double tax, thereby offered unfair advantage to the tax authorities, the Bench stated that the High Court had failed to enquire into the cardinal question as to whether the respondent was required to be fully or wholly dependent on the auto generated information in the electronic common platform for discharging its obligation to pay OTL for the relevant period between July and September 2017. Answering the aforesaid question in negative, the Bench stated that, the respondent being a registered person was under a legal obligation to maintain books of accounts and records as per the provisions of the 2017 Act and Chapter VII of the 2017 Rules regarding the transactions in respect of which the OTL would occur. The Bench added,

“The common portal is only a facilitator to feed or retrieve such information and need not be the primary source for doing self-assessment. The primary source is in the form of agreements, invoices/challans, receipts of the goods and services and books of accounts which are maintained by the assessee manually/electronically.”

Whether the Impugned Circular was inconsistent with Statutory Mandate?

While ascertaining the legality of the impugned circular, the Bench observed the express provision in the form of Section 39(9) clearly posits that omission or incorrect particulars furnished in the return in Form GSTR3B can be corrected in the return to be furnished in the month or quarter during which such omission or incorrect particulars are noticed. This very position had been restated in the impugned Circular. Therefore, it was held that the impugned circular was not contrary to the statutory dispensation specified in Section 39(9) of the Act and the High Court had noted that there was no such provision in the Act, which restricts such rectification of the return in the period in which the error is noticed.

Findings of the Court

The aspect of statutory obligation fastened upon the registered person to maintain books of accounts and record within the meaning of Chapter VII of the 2017 Rules, are primary documents and source material on the basis of which self-assessment is done by the registered person including about his eligibility and entitlement to get ITC (Input Tax Credit) and of OTL. Form GSTR2A is only a facilitator for taking an informed decision while doing such self-assessment.

Noticing that during the pre-GST regime, the respondent (being registered person/assessee) had been maintaining such books of accounts and records and submitting returns on its own, the Bench stated that non-operability of Form GSTR2A or for that matter, other forms, would be of no avail for the respondent 1 because the dispensation stipulated at the relevant time obliged the registered person to submit returns on the basis of such self-assessment in Form GSTR3B manually on electronic platform. Further, the Bench opined,

“Payment for discharge of OTL by cash or by way of availing of ITC, is a matter of option, which having been exercised by the assessee, cannot be reversed unless the Act and the Rules permit such reversal or swapping of the entries.”

Significantly, the registered person is not denied of the opportunity to rectify omission or incorrect particulars, which he could do in the return to be furnished for the month or quarter in which such omission or incorrect particulars are noticed. Thus, it was not a case of denial of availment of ITC as such, rather it was only a postponement of availment of ITC as the ITC amount remains intact in the electronic credit ledger, which can be availed in the subsequent returns including the next financial year.

Verdict

In the backdrop of above, the Bench held that the assessee-respondent could not be permitted to unilaterally carry out rectification of his returns submitted electronically in Form GSTR3B, which inevitably would affect the obligations and liabilities of other stakeholders, because of the cascading effect in their electronic records.

Further, the challenge to the impugned Circular was declared unsustainable, and the Bench held that stipulations in the Circular including in paragraph 4 were consistent with the provisions of the Act, 2017. The appeal was allowed. The impugned judgment and order was set aside.

[Union of India v. Bharti Airtel Ltd., 2021 SCC OnLine SC 1006, decided on 28-10-2021]


Kamini Sharma, Editorial Assistant has put this report together


*Judgment by: Justice A.M. Khanwilkar

Know Thy Judge| Justice AM Khanwilkar

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA, Bobde, CJ* and AS Bopanna and V. Ramasubramanian, JJ has directed telecom giants Bharti Airtel and Vodafone-Idea to disclose information/details regarding segmented offers to TRAI. It asked TRAI to ensure that such information is kept confidential and is not made available to the competitors or to any other person.

Facts leading to this order

  • The Telecommunication Tariff (63rdAmendment) Order, 2018 issued by TRAI on 16.02.2018 was challenged by Bharti Airtel Limited, Idea Cellular Limited and Vodafone Mobile Services Limited. Apart from “Reporting Requirements”   and   “Significant   Market   Power”(SMP), a grievance was also raised against insistence of TRAI about the disclosure of segmented discounts/concessions.
  • TDSAT issued an interim arrangement on 24.04.2018 staying the relevant clauses relating to the Reporting Requirements and the definition of SMP. However, the Tribunal permitted TRAI to ask for details of segmented discounts/concessions for analysis but exempted the Telecom Service Providers (TSPs) from disclosing the names of their customers and other sensitive information.
  • After the High Court refused to interfere with the aforementioned order, the TDSAT heard the appeals finally and allowed them partially by a final order dated 13.12.2018, setting aside the Telecom Tariff 63rd Amendment Order in so far as it changes the concepts of SMP, Non-predation and the related provisions;
  • TRAI hence moved the Supreme Court against TDSAT’s order and sought an interim direction to the service providers to disclose information/ details sought by the appellant regarding the segmented offers.

The TSPs argued before the Court that segmented offers constitute “confidentially designed trade practices” and the same has been recognised by TDSAT in it’s order. However, at the same time TDSAT allowed TRAI to seek the number of segmented offers made available to their existing customers, along with a declaration that the principles of non-discrimination were being followed. According to the TSPs, they are complying with the said direction.

TRAI, on the other hand, submitted before the Court considering the number of segmented offers provided by TSPs from January, 2019 to December, 2019 in various states, the details of these offers are not even disclosed to TRAI and that therefore, despite being a regulator, TRAI is not in a position to analyse whether the plans are transparent and non-discriminatory and whether predatory pricing is resorted to by TSPs in the garb of segmented offers or not. It was contended that the TSPs are under a statutory obligation to offer tariffs in a transparent and non-discriminatory manner and to report all tariffs to the authority.

Considering the facts and circumstances, the Court said that that the information being sought by TRAI to ensure adherence to the regulatory principles of transparency, non-discrimination and non-predation, cannot be said, at least prima facie to be either illegal or wholly unjustified.

[Telecom Regulatory Authority of India v. Bharti Airtel Ltd., 2020 SCC OnLine SC 910, order dated 06.11.2020]


*Justice SA Bobde, Chief Justice of India has penned this order

Case BriefsTribunals/Commissions/Regulatory Bodies

Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla: Coram of Justice P.S. Rana (President), Vijay Pal Khachi (Member) and Sunita Sharma (Member), dismissed the appeal filed by Bharti Airtel Ltd. against the order of the District Forum whereby Bharti Airtel was directed to pay punitive compensation to one of its consumer (respondent herein).

The complainant was a user of the appellant’s services. He was downloading a file which was of size 4MB to 5MB on the internet of his mobile when he observed that the appellant company had deducted an amount of Rs 200 from his account. Thereafter, he reported the matter to the appellant who credited an amount of Rs 148 back in his main account but did not credit the remaining amount of Rs 52 and committed deficiency in service. Aggrieved thereby, he filed a complaint before the District Forum who ordered the appellant to pay Rs 52 to the complainant along with an interest at 9% per annum. In addition to this, the District Forum also ordered the appellant to pay punitive compensation and litigation cost to the complainant to the tune of Rs 2000 and Rs 4000 respectively. Feeling aggrieved against the order passed by the District Forum, Bharti Airtel Ltd. filed a present appeal before the State Commission.

The counsels for the appellants, Mr Ravinder Kumar and Mr Abhishek Sood, argued that complicated facts were involved in the complaint and complainant be relegated to the Civil Court. They further contended that there was a special remedy provided under Section 7-B of Indian Telegraph Act, 1885 and jurisdiction of consumer fora was prohibited. For this, they placed reliance on Section 3 of the Consumer Protection Act, 1986 where remedy under the Act is an additional remedy.

The State Commission held that the order of the District Forum was strictly in accordance with the law and proved facts. On the contention of relegating the matter to the Civil Court, it was opined, “present matter could be disposed of in proper and effective manner under Consumer Protection Act, 1986 and it is not expedient in the ends of justice and on the principle of natural justice to relegate complainant to civil court.”

 The Commission held that “there is no provision under Consumer Protection Act, 1986 which bars filing of consumer complaint by consumer on the concept of alternative remedy.” It further held, “Opposite parties have received consideration amount from complainant for service rendered and present matter falls within definition of consumer as defined under section 2(d) of Consumer Protection Act, 1986.”

 In the view of the above, the Commission dismissed the appeal and affirmed the order of the District Forum.[Bharti Airtel Ltd. v. Rohit Sharma, First Appeal No. 59 of 2018, decided on 09-05-2019]