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2024 Supreme(Online)(Ker) 67308
IN THE HIGH COURT OF KERALA AT ERNAKULAM
DINESH KUMAR SINGH, J
ANISHIA CHANDRAKANTH – Appellant
Versus
THE SUPERINTENDENT – Respondent
W.P (C) Nos. 30644, 32069,38545,38547,38891, 39203 & 40762 of 2023
For the Appellants/Petitioners:
For the Respondents: Mr. Sreelal Warrier
The court ruled that late fees for GSTR-9C filing cannot be demanded if the annual return (GSTR-9) was filed on time, especially under the applicable amnesty scheme waiving excessive fees.
Headnote:(A) CGST/SGST Act, 2017 - Sections 44(1), 44(2), 47(1), 47(2), 35(5), and Rule 80 - Late fee for belated filing of annual returns - Petitioner filed annual returns belatedly but paid late fee - Respondent demanded additional late fee based on GSTR-9C filing date - Court found the demand unjust due to the amnesty scheme waiving late fees for non-filers and allowed the petitions. (Paras 1, 8, 25)
(B) Amnesty Scheme - The scheme waives late fees for non-filers of GSTR-9 returns for specified financial years and should benefit those who filed returns before the amnesty commencement date. (Paras 9, 24)
(C) Filing Requirements - GSTR-9C is a reconciliation statement and not a return under Section 44; thus, late fees should not apply for its delay if GSTR-9 was filed timely. (Paras 7, 23)
(D) Amendment Impact - Changes in the law regarding GSTR-9C filing requirements and late fees were significant and supportive of the taxpayer's position. (Paras 21, 24)
| Table of Content |
|---|
| 1. overview of petitioner's filing issues. (Para 2 , 3 , 4 , 5 , 6) |
| 2. arguments regarding late fee applicability. (Para 7 , 9 , 10 , 11) |
| 3. court's analysis of gst filing regulations. (Para 8 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 4. conclusion on late fee notices. (Para 25) |
JUDGMENT
[W.P (C) Nos. 30644, 32069,38545,38547,38891, 39203 & 40762 of 2023]
In the present batch of petitions, common questions of fact and law are involved. Therefore, the same have been heard together and disposed of with common judgment.
The relevant facts of one of the writ petitions i.e., (W.P (C) No. 30644 of 2023) are extracted hereunder which are almost similar to other writ petitions except for a few dates and figures.
“The petitioner is an assessee under the provisions of the CGST / SGST Act s and has been filing proper returns under the Act. However the petitioner had filed the annual return in FORM GSTR -9 for FYs 2017-18, 2018-19 and 2019-20 belatedly. In any event, the petitioner has paid the late fee for belated filing of the annual returns for the said years under Section 47 (2). But the respondent has demanded late fee and created huge demand by adopting the date of filing reconciliation statement in FORM GSTR-9C as the date of filing return by Ext. P4 order. Now the Central Government has introduced an amnesty scheme by Ext. P5 notification which is to be construed beneficial to the petitioner.”
2.The petitioner is a proprietorship concern dealer under the CGST / SGST Act , 2017 and Rules made thereunder. The petitioner is engaged in trading of paint, cement, aluminum sheets and hardware etc. The petitioner has been filing his proper returns and paying the tax dues thereon. However, the petitioner did not file his returns within the prescribed time limit under the Statute. As per Section 44 (1) r/w Rule 80 of the CGST / SGST Act , the annual return Form GSTR-9 is to be filed before 31st December following the end of such financial year.
3.The Government realising the difficulties in initial stage of implementation of GST regime particularly Rule 80 of the GST Rules, 2017, and prevailing of Covid -19 pandemic, extended the last date to file the returns for the financial years 2017-2018, 2018-2019 and 2019-2020 by the notification No.6/2020-CT dated 03.02.2020, 80/2020-CT dated 28.10.2020 and 4/2021-CT dated 28.02.2021 respectively.
4. The petitioner has paid tax due and interest for filing the returns along with the prescribed late fee under Section 47 of the CGST / SGST Act . The following chart would show the due date and filing of the return in FORM GSTR-9 and filing of reconciliation statement in FORM GSTR-9C.
5. The petitioner has been issued with a show cause notice dated 29.03.2023, for calculating the number of days of delay in filing annual returns. The respondent had proposed to demand late fee of Rs. 2,93,600/- under Section 47 (1) of the CGST / SGST Act , after adjusting the late fee of Rs. 57,600/- paid by the petitioner.
6.Corrigendum dated 13.04.2023 was issued by the respondent for stating that under Section 47 (1) referred to in the show cause notice dated 29.03.2023, it should be read as Section 47 (2) of the GST Act. The petitioner had submitted a reply dated 25.04.2023, pointing out the detailed objections to the proposals in the above notice and requested to drop the same by the reply dated 25.04.2023.
7.The petitioner submitted that a registered person is liable to pay the late fee under Section 47 (2) only when he fails to furnish the return in FORM GSTR-9 under Section 44 of the CGST / SGST Act . GSTR-9C is only a reconciliation statement to be filed along with the annual return and FORM GSTR-9C is not a return as contemplated under Section 44 of the CGST / SGST Act . Late fee is levaible upto the late filing of GSTR 9 return and not GSTR-9C reconciliation statement.
8.The respondent, however, did not agree with the objections raised by the petitioner, and passed the order in
