Under GST, payment of tax is accompanied by a return. GSTR 3B is a simple return form introduced by the CBIC which is to be filed by 20th of the following month. Wherein only total values for each field have to be provided, this value must be for the month for which return is being filed. However, GSTR-3B can be submitted only after making payment of GST due. If the return is filed late, GSTN automatically reflects the late fee to be paid whereas interest has to be computed manually.
Under section 49, payment of tax is required to be made on the basis of self assessment and the ITC is credited to his electronic credit ledger as per sections 41 and 43A on the basis of return maintained by GSTIN. This amount can be used for payment of tax.
Under section 43A of CGST Act, ITC can be availed as prescribed in Rules 85 to 87 under which electronic credit ledger is debited and electronic liability register is credited on the basis of returns filed. Any delay in payment would attract interest under section 50 of the CGST Act, 2017.
Interest liability under Section 50 of the CGST Act, 2017
According to section 50:
(1) Every person who is liable to pay tax but fails to pay the tax or any part thereof to the Government within the period prescribed, shall for the period for which the tax or any part thereof remains unpaid, pay, on his own, interest at such rate, not exceeding eighteen per cent., as may be notified by the Government on the recommendations of the Council.
(2) The interest under sub-section (1) shall be calculated, in such manner as may be prescribed, from the day succeeding the day on which such tax was due to be paid.
It is immaterial whether the self-assessed tax is paid through ITC or cash. Once the payment is made beyond the prescribed date, interest liability is attracted on the entire tax amount. It is pertinent to mention that the amount of the interest payable in terms of the section 50 of the CGST Act, 2017 would automatically become recoverable arrears, which needs to be recovered in terms of the section 79 of CGST Act, 2017.
Interpretation of Section 50 in M/s Megha Engineering & Infrastructure Ltd. [(2019) 9 TMI 408 (Telangana)]
The interpretation of section 50 was made by Hon’ble Telangana High Court Hyderabad Bench in the case of M/s Megha Engineering & Infrastructure Ltd. vide Order dated 18.04.2019 in WP No. 44517 of 2018. The judgment analyzed the provisions of section 50 and came to the conclusion that interest under section 50 of the CGST Act, 2017 shall be payable on the gross amount of tax payable i.e., on the ITC portion also.
But it is important to note that the High Court of Telengana took note of the Press Release of the GST Council proceeding of 31st meeting held on 22.12.2018 as extracted below:
“The GST Council in its 31st meeting held today at New Delhi gave in principle approval to the following amendments in the GST Acts:
1. Creation of a Centralised Appellate Authority for Advance Ruling (AAAR) to deal with cases of conflicting decisions by two or more State Appellate Advance Ruling Authorities on the same
2. Amendment of section 50 of the CGST Act to provide that interest should be charged only on the net tax liability of the taxpayer, after taking into account the admissible input tax credit, i.e., interest would be leviable only on the amount payable through the electronic cash ledger.
The above recommendations of the Council will be made effective only after the necessary amendments in the GST Acts are carried out.”
It is evident from the above and even the Hon’ble Court has recognized this fact that this has already been recommended by GST Council but is still on paper as it is not yet part of the law.
Thus, the proposal to charge interest on net of ITC value was recommended by the 31st GST Council in its meeting held on 22.12.2018.
Further, in 39th GST Council meeting held on 14.03.2020, it has been recommended that Interest for delay in payment of GST is to be charged on the net cash tax liability w.e.f. 01.07.2017 (Law to be amended retrospectively).
Scenario post Telangana Judgment
As a consequence of Telangana High Court Order, the Department has came into action and has started issuing notices for recovery of interest on gross liability to business entity across the country stating that interest is payable on the ITC component also in terms of section 50 read with Rule 85, 86 and 87.
In continuation to this, the CBIC through its official Twitter handle recently tweeted series of tweets on 15.02.2020, as extracted hereunder:
“1/n There are some discussions in social media w.r.t. interest calculation on delayed GST payments post a few media reports regarding Rs. 46,000 Cr interest on the delayed GST payments to be collected by tax authorities. On this issue of interest calculation, it is clarified that-
2/n The GST laws, as of now, permit interest calculation on delayed GST payments on the basis of gross tax liability. This position has been upheld in the Telangana High Court’s decision dated 18.04.2019.
3/n In spite of this position of law and Telangana High Court’s order, the Central Government and several State Governments, on the recommendations of GST Council, amended their respective CGST/SGST Acts to charge interest on delayed GST payment on the basis of net tax liability.
4/n Such amendment will be made prospectively. The States of Telangana and West Bengal are in process of amending their State GST Acts. After the process of amendments is complete, the changed provisions can be put in operation for the entire country.”
In Allied Motors Ltd. v. CIT [CA No. 3175/91 and 2380/91] Supreme court held that “a proviso which is inserted to remedy unintended consequences and to made the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give it a reasonable interpretation , requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole.”
Thus, proviso ought to have retrospective application w.e.f. 1.7.2017 only.
Its amply clear from the aforementioned pronouncements that the intention of the Government and GST Council is not to levy interest on gross liability but only on the actual tax liability after adjusting the due credit on account of eligible input tax audit.
Post the Telangana High Court Judgment, there have been various judicial pronouncements by High Court and Supreme Court wherein it has been held that interest on delayed payment, if any is payable on amount net of ITC only.
Amendment of Section 50 of CGST Act, 2017
The Finance (No. 2) Bill, 2019 vide clause 100 proposed to amend section 50 by inserting following proviso to section 50(1) of CGST Act, 2017:
“Provided that the interest on tax payable in respect of supplies made during a tax period and declared in the return for the said period furnished after the due date in accordance with the provisions of section 39, except where such return is furnished after commencement of any proceedings under section 73 or section 74 in respect of the said period, shall be levied on that portion of the tax that is paid by debiting the electronic cash ledger.”.
The Finance (No. 2) Bill, 2019 was presented in Lower House of the Parliament on 05.07.2019 proposing, inter alia, to amend section 50 of CGST Act, 2017. The bill was passed in both Houses of the parliament and received the assent of the President on 01.08.2019. The clause (b) section 2 of Finance Act, 2019 mandated that “sections 92 to 112 and section 114 shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
The Central Government has not yet notified section 100 of Finance Act, 2019 which inserted a proviso to section 50(1) of CGST Act, 2017 to provide for levy of interest on the portion of the tax that is paid by debiting the electronic cash ledger.
Various judicial pronouncements holding interest liability on net amount
(1) M/s. Refex Industries Limited, M/s. Sherisha Technologies Pvt. Ltd. v. The Assistant Commissioner of CGST & Central Excise, The Superintendent of Central Tax, Bank Managar, ICICI Bank (2020) 2 TMI 794 (Madras)
Hon’ble Madras High Court vide its Order dated 06.01.2020 in WP(C) No. 23360 has held that:
Hon’ble Delhi High Court vide its Order dated 27.05.2019 in WP(C) No. 6055/2019 in case of M/s Landmark Lifestyle Cars Pvt. Ltd., Delhi had stayed the charging of interest under section 50 by stating that no coercive action to be taken against the petitioner for non-payment of the interest amount which indicates that the issue is in dispute.
(3) Sunrise Autoworld Pvt. Ltd. v. Commissioner, CGST
On 02.03.2020, the Hon’ble High Court of Delhi at New Delhi, has in a petition challenging the demand notice issued by Department over payment of interest on gross tax liabilty, granted stay in the matter of Sunrise Autoworld Pvt. Ltd. v. Union of India. The Petitioner has already paid and deposited admitted interest payable on delayed cash payment of tax liability. However, the Respondent has issued demand notice seeking to recover interest on gross tax liability arising due to belated filing of statement in Form GSTR-3B.
In view of above amendments, GST Council meeting update and judicial pronouncements, interest ought to be charged on net amount only and all the notices issued by the Department should be dropped. Taxpayers may appropriately respond to notices/letters received from the GST Department keeping in mind the above discussion.