Form the point of view of revenue collections by the government, monthly return in form GSTR-3B has been major source of tax collections under the GST regime. However, it has been observed that the due dates for filing this return in form GSTR-3B has not provided in GST Acts, these have not even provided in GST Rules either. The situation became more complex, not only due to some errors in drafting these laws, but also the way has this law been implemented over the period of time. Lawmakers seems confused over the concept of “Prescribed” and “Notified” in implementing the law, at many places these terms have been interchangeably used by the department to enforce the various provisions of GST Acts.

As per Sub-clause 80 of section 2 of CGST Act 2017, “notification” means a notification published in the Official Gazette and the expressions “notify” and “notified” shall be construed accordingly;

As per Sub-clause 87 of section 2 of CGST Act 2017, “prescribed” means prescribed by rules made under this Act on the recommendations of the Council;

As per subsection (1) of Section 164 of CGST Act 2017, the Government may, on the recommendations of the Council, by notification, make rules for carrying out the provisions of this Act. Also as per sub section (2), the Government may make rules for all or any of the matters which by this Act are required to be, or may be, prescribed or in respect of which provisions are to be or may be made by rules.

Similarly Section 165 empowers the Government to make regulations consistent with this Act and the rules made there under to carry out the provisions of this Act.

This principle of Delegata potestas non potest delegari have not been followed at many places in GST laws.

Delegata potestas non potest delegari

It  is a principle in constitutional and administrative law that means in Latin that “no delegated powers can be further delegated.”

In other words, one to whom power is delegated cannot himself further delegate that power.

In India, the law was first stated in A K ROY v. State Of Punjab, (1986) 4 SCC 326, that sub delegation of delegated power is ultra vires to the enabling Act. This was also followed in KM Abraham’s case by the Honorable Supreme Court.

In Vasantlal Maganbhai Sanianwal v. The State of Bombay(1) 1961 AIR 4 1961 SCR (1) 341, the question of delegation of legislative power arose. This Court enunciated the principle thus:

“Although the power of delegation is a constituent element of the legislative power, it is well-settled that a legislature cannot delegate its essential legislative function in any case and before it can delegate any subsidiary or ancillary powers to a delegate of its choice, it must lay down the legislative policy and principle so as to afford the delegate proper guidance in implementing the same. A statute challenged on the ground of excessive delegation must therefore be subjected to two tests, (1) whether it delegates essential legislative function or power and (2) whether the legislature has enunciated its policy and principle for the guidance of the delegate”

In Para 23 of Ultra Tech Cement Limited vs. The Union of India and Ors., WP(C) 13271/2011, the Kerala High Court held that

“Sub-delegation implies a further delegation of the same power, which was originally delegated by the legislature. The governing principle is that legislative powers must be exercised by the delegatee himself and by none else. A delegatee cannot further delegate his power unless the parent law permits it to do so. In the above context, the doctrine delegatus non potest delegare, that is, a delegatee cannot further delegate, comes into play. Thus, if a law confers power on the Central Government to make rules, it cannot further delegate that power to any other officer, unless the parent law itself gives authority to the Government to that effect.”

In other words any powers, conditions, manner, time limits etc which have been required by the Act, to be prescribed in the Rules made there under, it has to be prescribed in Rules itself and can’t be imposed by issuing notifications without amending the corresponding rules, until and unless such powers have been provided by enabling parent act itself.

Now let’s check the time period up to which a registered person is required to deposit taxes or in other words is required to submit his GST returns, particularly GSTR-3B.

As per sub section (1) of Section 39 Every registered person, other than an Input Service Distributor or a non-resident taxable person or a person paying tax under the provisions of section 10 or section 51 or section 52 shall, for every calendar month or part thereof, furnish, a return, electronically, of inward and outward supplies of goods or services or both, input tax credit availed, tax payable, tax paid and such other particulars, in such form and manner, and within such time, as may be PRESCRIBED.

An important point to note here is that:

The words

and within such time,”

In section 39 have been added / amended twice

First through Section 17 of CGST (Amendment) Act 2018.

Then through Section 97 of Finance (No.2) Act 2019.

BUT

These corresponding sections of respective acts have YET not been notified either.

Which means that only  FORM and MANNER of filing return under section 39 of CGST Act,2017 may be PRESCRIBED.

As per sub rule (5) of Rule 61, Where the time limit for furnishing of details in FORM GSTR-1 under section 37 or in FORM GSTR-2 under section 38 has been extended, the return specified in sub-section (1) of section 39 shall, in such manner and subject to such CONDITIONS as the Commissioner may, by NOTIFICATION , specify, be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner”.

An important point to note here is that:

Rule 61(5) was amended THREE times

With RESTROSPECTIVE effect from 01.07.2017 vide

1. Notification no. 17/2017 dated 27.07.2017

2. Notification no. 22/2017 dated 17.08.2018

3. Notification no. 49/2019 dated 09.10.2019

Legislative history of amendment to Rule 61(5) is presented below in a tabular format:

Original Rule Substituted w.r.e.f. 01.07.2017 vide not. no. 17/2017 dtd. 27.07.2017

 

Substituted w.r.e.f. 01.07.2017 vide not. no. 22/2017 dtd. 17.08.2017

 

Substituted w.r.e.f. 01.07.2017 vide not. no. 49/2019 dtd. 09.10.2019

 

(5) Where the time limit for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended
and the circumstances so warrant,

return in FORM GSTR-3B, in lieu of FORM GSTR-3, may be furnished in such manner and subject to such conditions as may be notified by the Commissioner.

 and the circumstances so warrant,

the Commissioner may, by notification, specify that return shall be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner.

and the circumstances so warrant,

the Commissioner may, by notification, specify

that the manner and conditions subject to which the return shall be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner.

the return specified in sub-section (1) of section 39 shall,

in such manner and subject to such CONDITIONS as the Commissioner may, by NOTIFICATION , specify, be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner.

Now, in my humble opinion two questions arises here,

Firstly

Whether NOTIFYING the due dates for filing GSTR-3B is against the principles of Delegata potestas non potest delegari?

Secondly

Whether the act or rules can be amended retrospectively, to amend the provisions so as to require the registered person to follow any compliance which is back dated. In simple words, if there is no due date for filing GSTR-3B either in ACT or RULE, can government amend rules / sections and require a person to file GSTR-3B within due date even in situation where the said due date has already elapsed?

Whether the conditions as mentioned in sub rule (5) of Rule 61 includes the time limit within which GSTR-3B is required to be filed, especially when section 39 requires this time limit to be prescribed in rules itself. Especially in the situation where the amendment authorizing the government to PRESCRIBE the DUE DATE / TIME LIMIT for filing GSTR-3B has not been notified yet in Section 39(1)?

I am just a GST Learner and I leave this question unanswered to the discretion of the learned readers.

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