By Vinay Kumar Jain and Jay Chheda, Advocates
1. Whether an assessee can amend GSTR-1 to rectify the mistake of mentioning incorrect GSTIN number of the supply recipient?
Facts and Pleadings: The Petitioner is engaged in the business of mining. In 2018, the Petitioner’s company was engaged by Eastern Coaalfields Ltd. for providing services in relation to removal and re-handling of overburden from Dahernangi OC patch. At the time of filing GSTR 1 for the month of January 2019 in March 2019, an inadvertent error occurred in mentioning the GSTIN number of the service recipient. Such error was realized only in June 2021. As a result, the transaction between the Petitioner and Eastern Coalfields Ltd. was not reflected in the GSTR-2A of Eastern Coalfields Ltd, instead it was shown in the GSTR-2A of MIPL-NKAS. The Petitioner therefore requested the department to allow rectification of Form GSTR-1 which was rejected. The department rejected the request on the ground that GSTN portal does not allow amendments of the returns after filing of annual return GSTR-9. Accordingly, the Petitioner filed a writ before Jharkhand High Court.
The Revenue’s case before the High Court was that any such rectification in Form GSTR-1 could have been done by the Petitioner within the time limit prescribed under Section 37(3) of the JGST Act i.e. after furnishing of GSTR 3B (the return under section 39) for the month of September following the end of the financial year to which such details pertain, or furnishing of the relevant annual return, whichever is earlier. Further, the Revenue argued that Form GSTR-1 in column No. 9 provides for amendment of such errors or incorrect entries pertaining to invoice, credit notes, debit notes as also GSTIN number which the Petitioner had failed to avail.
Judgment passed by High Court of Jharkhand:
The Court observed that there was no misutilization of ITC by either of the parties, the issue that essentially remained was that of the correction of returns only. The Petitioner drew the attention of the Court to the provisions of Section 37(3) and section 42 and 43 of the CGST. The Petitioner also referred to the amendment carried out in Section 37(3) by the Finance Act 2022 by which the expression “and which have remained unmatched under Section 42 or 43” have been omitted. The above amendment was notified through Notification No. 19/2022 dated 28.09.2022 w.e.f. 01.10.2022 only prospectively.
By the said amendment the Rules 69 to 77 and 79 have been omitted and Forms GSTR-1A, GSTR-2 and GSTR-3 have also been omitted. These amendments have been notified for the first time by the Notification dated 28.09.2022 w.e.f. 01.10.2022. Therefore, these amendments do not have any bearing on the case of the Petitioner which relates to filing of GSTR-1 for January 2019 in March 2019.
Subsequently, the mechanism for discovery of any such error or omission to rectify the return as per section 37(3) was not notified at the time of filing of GSTR-1. The correction of the relevant GSTIN number in GSTR-1 form of the Petitioner relating to January 2019, the consequent reflection of such ITC in GSTR- 2A of Eastern Coalfields Ltd. and deletion of such ITC from the return of MIPL-NKAS in GSTR-2A would be revenue neutral. In the interest of justice, the Court allowed the Petitioner to make the necessary correction in GSTR-1 form for January 2019.
The Court directed that the changes may be allowed to be made online by GSTN by opening the portal for a limited period upon due communication to both parties. If the changes are not possible online for technical reasons, the GSTN could allow the Petitioner to make such corrections through manual mode. Such corrections were ordered to be made within a period of 8 weeks from the date of receipt of the order.
M/s Mahalaxmi Infra Contract Ltd v. GST Council, New Delhi and Ors – 2022 TIOL-1393-HC-JHARKHAND-GST
2. Whether interest can be levied on delayed filing of GTSR 3B return while the amount has been deposited in the Electronic Cash ledger before the due date of filing the GSTR 3B return?
Facts and Pleadings: Petitioner had deposited amount in Electronic Cash Ledger before due date of filing GSTR 3B return but filed GSTR 3B return after due date. The department demanded interest of Rs. 13,23,783/- due to delay in filing of GSTR-3B return for the period July 2017 to December 2019, in terms of Section 50 of the CGST Act.
The Petitioner filed a Writ Petition before Jharkhand High Court on the ground that interest cannot be levied on delayed filing of GSTR 3B return since deposit in Electronic Cash Ledger was undertaken prior to the due date and the same amounts to discharge of tax liability to government.
Judgement passed by High Court of Jharkhand:
The High Court held that the department has rightly computed interest as deposit in Electronic Cash Ledger does not amount to payment of tax liability to government. As per Section 49(1) any deposit made in the prescribed modes are mere deposits towards tax, interest, penalty, fee or any other amount by such person credited to the Electronic Cash Ledger. Such deposit does not mean that the amount is appropriated towards the Government exchequer. The discharge of tax liability is simultaneous with the filing of GSTR 3B return. The cash ledger is just an e-wallet where cash can be deposited at any time by creating the requisite Challans. Since, the amount lies deposited in the Electronic Cash Ledger, a registered assessee can claim its refund any time. Any registered person can pay the tax not later than the last date on which he is required to furnish such return but only on filing of GSTR-3B the amount lying in his Electronic Cash Ledger is debited towards payment of tax, interest or tax liability. As per the scheme of CGST Act, payment of tax cannot be done prior to filing of GSTR 3B return, though such deposits may be made or are lying in Electronic Cash Ledger. The High Court held that mere deposit of amount in the Electronic Cash Ledger on any date prior to filing of GSTR-3B return, does not amount to payment of tax liability. Accordingly, the High Court dismissed the petition.
RSB Transmissions India Limited v. Union of India & Others – 2022-VIL-745-JHR