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person furnishes a valid return within thirty days of the service of the assessment order shall be deemed to have been withdrawn.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.
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])