Case Law Details
Tvl. KPK Fuel Services Vs State Tax officer (Madras High Court)
The Madras High Court considered a challenge to an order dated 13.12.2023 imposing late fee and penalty for failure to file the annual return in Form GSTR-9. The petitioner argued that the time limit for filing the annual return for the financial year 2017-18 was three years from the due date of furnishing the return and contended that the impugned order incorrectly recorded that the return had been filed on 07.12.2022. It was further argued that a late fee could be levied only for belated filing and not for non-filing of returns. Referring to Section 47(2) of the CGST Act, 2017, the Court held that late fee is leviable on any registered person who fails to furnish the annual return by the due date and continues until the failure persists, subject to the prescribed maximum limit. The Court also examined the imposition of penalty under Section 125 and held that, since no separate penalty is prescribed under the GST statutes for failure to file the annual return, penalty under Section 125 could validly be imposed. Concluding that the petitioner’s contentions were untenable and finding no infirmity in the impugned order, the Court dismissed the writ petition without costs.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
An order dated 13.12.2023 imposing a late fee and penalty on the petitioner for failure to file the annual return in Form GSTR-9 is the subject of the challenge in this writ petition.
2. Ms. Amirta Poonkodi Dinakaran, learned Government Counsel (Tax), accepts notice on behalf of the respondent.
3. Learned counsel for the petitioner contends that the time limit for filing an annual return for a financial year is three years from the due date of furnishing said annual return. As regards the Assessment Year 2017-2018, he submits that a notification was issued fixing the due date of 05.02.2026. Reckoning the three-year period therefrom, he submits that the three year period lapsed in February 2023. Adverting to the impugned order, learned counsel contends that it erroneously records that the taxpayer filed the return on 07.12.2022. He adds that a late fee may be levied only in respect of belated filing of a return, but not in respect of non-filing thereof.
4. Sub-Section (2) of Section 47 of the Central Goods and Service Tax (CGST) Act, 2017, governs the issue. The said provision is set out below:
“Section 47 Levy of Late Fee.
(1)
(2) Any registered person who fails to furnish the return required under Section 44 by the due date shall be liable to pay a late fee of one hundred rupees for every day during which such failure continues subject to a maximum of an amount calculated at a quarter per cent. Of his turnover in the State or Union Territory.”
5. From the text of Sub-Section (2), it is evident that late fees is leviable on a registered person who fails to file the return by the due date. The said late fee is leviable at Rs.100 per day of default, subject to the maximum of not more than 0.25% of the turnover.
6. Learned counsel for the petitioner also contends that the penalty under Section 125 of applicable GST enactments cannot be imposed after levying a late fee. Section 125 enables the imposition of penalty of up to Rs.25,000/- for contravention of any provisions of the applicable GST statutes or rules framed thereunder, provided no separate penalty is prescribed under the statute in respect thereof. On perusal of applicable statutes, no separate penalty is prescribed in respect of failure to file the annual return. Hence, the imposition of penalty is in order.
7. Thus, the contention of learned counsel for the petitioner is untenable and Section 47(2) enables the levy of late fee, if a taxpayer fails to file the return. In view thereof, there is no infirmity in the impugned order warranting interference under Article 226 of the Constitution of India.
8. For the reasons aforesaid, this Writ Petition stands dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed.
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