In past few days there has been lot of debate on which amount, interest under section 50 of the CGST Act shall be levied i.e on Net tax liability (tax paid by cash) or on Gross tax liability in case of delayed payment of tax.
Before going head, let us read the section 50. Section 50(1) of the CGST states “Every person who is liable to pay tax in accordance with the provisions of this Act or the rules made thereunder, 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.”
Further proviso to s.50(1) inserted vide Finance (no. 2) Act, 2019 from the date to be notified which read as “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.”
Almost considerable time has elapsed since insertion of proviso to S.50(1), however the same is not being notified yet.
Recently, the department has started issuing notice to taxpayer for payment of interest calculated on gross tax liability. Also, CBIC, in its series of tweet, has justifies the same on the ground that, pending the notification, GST laws permits the calculation of interest in case of delayed payment on gross tax liability and also relied on the judgement of Telangana High Court decision in case of Megha Engineering & Infrastructure Limited where in it was held that interest u/s. 50(1) was chargeable on the gross tax liability. The said judgement was pronounced before proviso to S.50(1) was inserted by Finance (no. 2) Act, 2019.
However, Recently, Madras High Court in its judgement pronounced on 06.01.2020 in case of Reflex Industries Limited (TS-89-HC-2020(MAD)-NT), has held that interest u/s. 50(1) is chargeable on net tax liability i.e on tax payment in cash after the netting of the ITC available and not on Gross Tax liability.
It is imperative by the CBIC to justify the charging of interest on gross tax liability, where even in erstwhile statutes, the interest was charged in net amount and not gross amount.
To avoid blocking of tax money in prolonged litigation, government should issue notification to aforesaid amendment retrospectively at earliest.
We hope that Government would walk on one of the important themes of its Economic Survey 2019 – 20 that the nation must respect businessmen as they create wealth and also jobs, which is the need of the hour and essential for boosting economic growth in sustained manner.