The fever for GST-ASMT 10 was not yet over and today got another notice called GSTR-3A for non filling of GSTR 3B. Unlike last time this notice was an attachment in prescribed format however without authorized signature but yet again from “GMAIL ID”. I feel that the higher ups in the department should give proper instructions to the jurisdictional officers regarding this, as it may raise issues of authenticity of such notices received through a public domain. Through this write up, I putting an effort to analyze few anomalies in the GST provisions.

GSTR-3A is a notice to return defaulter under section 46 r/w sections 62 of CGST Act, 2017 r/w CGST Rule 68.

For better understanding the above mentioned sections are reproduced below:

Sec 46 of CGST Act –

“Notice to return defaulters – Where a registered person fails to furnish a return under section 39, or section 44 or section 45 a notice shall be issued requiring him to furnish such return within fifteen days in such form and manner as may be prescribed.”

Sec 62 of CGST Act,2017

“(1)Notwithstanding anything to the contrary contained in Section 73 or Section 74 where a registered person fails to furnish the return under section 39 or section 45 even after service of notice under section 46 , the proper officer may proceed to assess the tax liability of the said person to the best of his judgment taking into account all the relevant material which is available or which he has gathered and issue an assessment order within a period of five years from the date specified under section 44 or furnishing of the annual return for the financial year to which the tax not paid relates.

.(2) Where the registered person furnishes a valid return within thirty days of the service of the assessment order shall be deemed to have been withdrawn. But the liability for payment of interest under sub-section (1) of section 50 or for the payment of late fee under section 47 shall continue”

Rule 68 of CGST Rules, 2017

“A notice in Form GSTR 3A shall be issued, electronically, to a registered person who fails to furnish return under section 39,or section 44 or section 45 or section 52.” 

I would like to highlight the word “Electronically” mentioned in the rule. Firstly this notice GSTR-3A need to be issued electronically “i,e in the GST common portal”.

Merely sending a manual notice by attaching a document via E-Mail does not suffice the requirement of the Act and Rules. The very inclusion of this word “Electronically” in the rules justifies the intention of the lawmaker that when the notice is issued electronically in the common portal it ensures that there remains an uniformity in all the notices served across the country (One Nation One Tax) . Currently the notices are getting issued without proper cognizance of the legal provision in the Act and relevant Rules. If the Department is not ready with the infrastructure as it is required by the law , they can issue the notices when the GSTIN Common portal supports such infrastructure.

On further enquiry with concerned jurisdictional officers, the following clarification obtained which will be useful for readers :-

♠ This notice has been sent as a mass mailer and it does not segregate the non filers with the regular filers. As in our case all the GST returns were filed up to date, but still the notice was served.

When a call was made to the number mentioned in the notice, the department official stated that “if returns are filed the notice can be ignored”.

He also mentioned that Going forward they will add a line in the notice to this extent

♠ However the question is, whether the “learned” department can issue such a notice without verifying the actual status of non-filers, just for the sake of issuing a notice?

Section 46 specifically mention notice to “return defaulter” i,e a registered person who fail to furnish a return. Hence as per law this notice should be issued only to non filers of GST Returns. However the department is issuing notice to tax payers without verifying whether such default exists or not. 

♠ For non filers the late filing fees are as follows:

NIL Return: Rs 20/per day

Other: Rs 50/Day

Along with late fee interest on delayed payment is also applicable.

Conclusion:

These kind of notices will create more confusion among the tax payers and in turn it will increase the resentment of the tax payers towards the department. This will further result in reduction of GST collection and increase non compliance.

If implementation of the law is done by both department and tax payer hand in hand, it will help reduce compliance burdens of the tax payer. We are seeing that GST Council along with the authorities is approaching towards centralizing advance ruling under GST under one platform.

The reason is very evident that it will ensure all advance rulings decisions are taken and applied uniformly across the country so that the Act and Rules are not used by each state department as per their whims and fancies.

The views expressed in this article are personal and further suggestions can be shared to the author through mail ([email protected])

Author Bio

Qualification: CA in Practice
Company: N/A
Location: Tumkur, Karnataka, IN
Member Since: 05 Jun 2018 | Total Posts: 1

More Under Goods and Services Tax

16 Comments

  1. Sir,

    I have also received Notice to return (on 03.03.2021) defaulter U/s 46 for not filing return for the month of Jan 21

    Even though I have been Opted QRMP Scheme automatically.

    and I have paid full applicable GST for the month Jan 21 before due date.

    I have paid the GST amount in the Challan on self-assessment basis.

    So I request the forum to suggest what to do in this regard.

  2. Srishti says:

    My issue is the assessee has opted out of Composition levy .. Notice says GSTR 3B Is not filed for periods in which we had composition levy (GSTR 4 has been duly filed) Where do I reply for aforesaid Notice.. The portal inst taking reference number of the notice.. so should send hard copies to Department or reply through E-mail only? Kindly suggest on this .

  3. Gourav Kale says:

    Recently i have also received same notice for ISD(Input servoce distribution) Number. Now I’m so confused how to file 3B for ISD registration .

  4. Shyamala says:

    My dad has taken GST number but never have any bills neither received a bit yet
    N he closed his silk deying business long back n asked auditor not to file GST anymore
    But now we got notice under section 46 to submit bills n pay penalty
    Please tell me what to do with this problem where we are not giving or receiving any bills

  5. DHARMESH GUPTA says:

    Dear Mr.Dass,
    The above article on gst -notice us sec-46 is very useful.I also recieved 2 noticices from department issued by suprientandant that returns have not been filed whereas all the returns due under act was filed moreover taxpayers are not required to file gstr-1 or gstr-3b if status is changed from regular taxpayer to composisition taxpayer for the period mentioned in the notice&composisition dealers are not at all required to file gstr-3b for which notice has been issued manualy on form 3A as attachment on gmail.com.moreover the email usede for the said notice has been served on initial email of gst registeration of taxpayer which has been amended since long after implimentation of gst in july-2017.
    I have replied them on the return mail &vide registered speedpost attaching screen shots of all the returs filed as per status of taxpayer at common portal.My question is whether they will reply by mail or at common portal that the said notice has been droped or withrawn or not or else taxpayer has to visit respective jursidictional office for clearification unnecessarily imposed on him?I shared this reading ypur article above,&also please suggest can properofficer assess as per best judgement in these cases or not?
    with regards ,
    Dharmesh Gupta
    m.com.(assessee)

Leave a Comment

Your email address will not be published. Required fields are marked *

Search Posts by Date

June 2021
M T W T F S S
 123456
78910111213
14151617181920
21222324252627
282930