Extension of GST Limitation Date: Section 168A Implications

Introduction

CBIC drawing its power from section 168A of the CGST Act vide Notification No. 56/2023-Central Tax dated 28^th of December 2023 further extended the time limit specified under sub- section (10) of section 73 for issuance of order under sub-section (9) of section 73 of the said Act, for recovery of tax not paid or short paid or of input tax credit wrongly availed or utilized, relating to the period as specified below, namely:–

(i) For the financial year 2018-19, up to the 30th day of April, 2024;

(ii) For the financial year 2019-20, up to the 31st day of August, 2024.

Accordingly, the time to issue the Show Cause Notice u/s 73 stands at 31^st of January 2024 for 2018-19 & 31^st of May 2024 for FY 2019-20.

The original (as it stood prior to issue of this notification) and the revised time limit to issue order and SCN u/s 73 is tabulated below:

The aforementioned Notification has been issued by the CBIC pursuant to the authority vested in it under Section 168A of the CGST Act. CBIC exercises power to issue Notifications for the extension of time limits when compliance becomes impracticable due to force majeure events.

Legal Provision:

Section 168A(1): Notwithstanding anything contained in this Act, the Government may, on the recommendations of the Council, by notification, extend the time limit specified in, or prescribed or notified under, this Act in respect of actions which cannot be completed or complied with due to force majeure.

Explanation—For the purposes of this section, the expression “force majeure” means a case of war, epidemic, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature or otherwise affecting the implementation of any of the provisions of this Act.

Observation:

Upon careful perusal of Section 168A of the CGST Act, 2017, it is evident that its invocation is contingent upon the inability to fulfil required actions attributable to force majeure events which has been specifically defined in the provisions.

Notably, the Notification No. 56/2023-Central Tax dated 28^th of December 2023 has been invoked abruptly without any such force majeure events putting the arbitrary extension of the limitation date to a litigation.

Comments:

Impugned SCN issued u/s 73 after the original date i.e., 31.12.2023 for 2018-19 & 31.03.2024 for 2019-20 should be challenged and disputed at the earliest stage of proceeding before going into haste to comply.

Section 160 of the CGST Act casts the responsibility on the taxpayer to bring into notice any sort of deficiency in the notice/letter at the very first stage to call it invalid in the eyes of law.

Following defence are worthy to be considered for opposing such impugned notices:

• The Hon’ble Gujarat HC in the case of New India Acid Baroda Pvt. Ltd. [Special Civil Application No. 21165 of 2023] has stayed the proceedings till the next hearing.
• The Hon’ble Gujarat HC in the case of M/S. SRSS Agro Pvt. Ltd. Versus Union of India [Special Civil Application No. 19720 Of 2023] has issued a notice to the revenue department challenging the extension u/s 168A of the CGST Act.
• The Hon’ble Allahabad HC in the case of M/s. Graziano Transmission [Writ Tax No. 1256 of 2023] has stayed the passing of final order till the disposal of petition challenging the adjudication of SCN for FY 2017-18 issued under extended time limits.

Conclusion: In conclusion, the CBIC’s extension under Section 168A demands a critical analysis of its legal standing. Taxpayers are encouraged to scrutinize impugned SCNs and consider legal defenses presented by recent court cases. Vigilance and early challenges may prove instrumental in navigating these extended time limits and potential legal hurdles.