DECEMBER 11, 2024

By Vijay Kumar

LET us try to enrich our simple GST knowledge.

This is a lengthy passage and it had to be.

Annual return. [Introduced by CGST Act, 2017]

44. (1) Every registered person, other than an Input Service Distributor, a person paying tax under section 51 or section 52, a casual taxable person and a non-resident taxable person, shall furnish an annual return for every financial year electronically in such form and manner as may be prescribed on or before the thirty-first day of December following the end of such financial year.

4[Provided that the Commissioner may, on the recommendations of the Council and for reasons to be recorded in writing, by notification, extend the time limit for furnishing the annual return for such class of registered persons as may be specified therein:

Provided further that any extension of time limit notified by the Commissioner of State tax or the Commissioner of Union territory tax shall be deemed to be notified by the Commissioner.]

(2) Every registered person who is required to get his accounts audited in accordance with the provisions of sub-section (5) of section 35 shall furnish, electronically, the annual return under sub-section (1) along with a copy of the audited annual accounts and a reconciliation statement, reconciling the value of supplies declared in the return furnished for the financial year with the audited annual financial statement, and such other particulars as may be prescribed.

6[Explanation.- For the purposes of this section, it is hereby declared that the annual return for the period from the 1st July, 2017 to the 31st March, 2018 shall be furnished on or before the  7[31st January, 2020]  and the annual return for the period from the 1st April, 2018 to the 31st  March, 2019 shall be furnished on or before the 31st March, 2020.]"

1. Inserted vide Order No. 1/2018-Central Tax dated 11-12-2018

2. Substituted vide Order No.03/2018-Central Tax dated 31-12-2018 before it was read as "31st March, 2019"

3. Substituted vide Order No. 6/2019-Central Tax dated 28-06-2019 before it was read as " 2[30th June, 2019]"

4. Inserted vide FINANCE (NO. 2) ACT, 2019  w.e.f. 01-01-2020

5. Substituted vide Order No. 7/2019-Central Tax dated 26-08-2019 before it was read as "3[31st August, 2019]"

6. Substituted vide Order No. 08/2019-Central Tax dated 14-11-2019 before it was read as

"1 [Explanation.-For the purposes of this section, it is hereby declared that the annual return for the period from the 1st July, 2017 to the 31st March, 2018 shall be furnished on or before the   5 [30 th November, 2019].]"

7. Substituted vide Order No. 10/2019-Central Tax dated 26-12-2019 before it was read as "31st December, 2019"

Substitution of new section for section 44. [by Finance Act, 2021 enacted 28 th March 2021]

111.  For section 44 of the Central Goods and Services Tax Act, the following section shall be substituted, namely:--

Annual return.

"44. Every registered person, other than an Input Service Distributor, a person paying tax under section 51 or section 52, a casual taxable person and a non-resident taxable person shall furnish an annual return which may include a self-certified reconciliation statement, reconciling the value of supplies declared in the return furnished for the financial year, with the audited annual financial statement for every financial year electronically, within such time and in such form and in such manner as may be prescribed:

Provided that the Commissioner may, on the recommendations of the Council, by notification, exempt any class of registered persons from filing annual return under this section:

Provided further that nothing contained in this section shall apply to any department of the Central Government or a State Government or a local authority, whose books of account are subject to audit by the Comptroller and Auditor-General of India or an auditor appointed for auditing the accounts of local authorities under any law for the time being in force.".

Amendment of section 44. [by Finance Act, 2023 enacted on 31st March 2023]

144. Section 44 of the Central Goods and Services Tax Act shall be renumbered as sub-section (1) thereof, and after sub-section (1) as so renumbered, the following sub-section shall be inserted, namely:-

"(2) A registered person shall not be allowed to furnish an annual return under sub-section (1) for a financial year after the expiry of a period of three years from the due date of furnishing the said annual return:

Provided that the Government may, on the recommendations of the Council, by notification, and subject to such conditions and restrictions as may be specified therein, allow a registered person or a class of registered persons to furnish an annual return for a financial year under sub-section (1), even after the expiry of the said period of three years from the due date of furnishing the said annual return.".

Following are the notifications issued in exercise of powers u/s 44 of the Act, 2017 extending the date of filing of annual return for the FY 2017-18, 2018-19 and 2019-20 respectively -

++ By Notification No.06/2020-Central Tax - Due date for furnishing annual return for the Financial year 2017-2018 - extended to 5 th February 2020/7 th February 2020 [for States as notified]

++ By Notification No. 15/2020-Central Tax dated 23rd March 2020, Due date for furnishing annual return for the FY 2018-2019 extended to 30.06.2020 [further extended to 30th September 2020 by NOTIFICATION No. 41/2020-Central Tax dated 5th May 2020; further extended to 31st October 2020 by notification 69/2020-CT dated 30th September 2020; further extended to 31st December 2020 by notification 80/2020-CT dated 28th October 2020]

++ By NOTIFICATION NO. 95/2020-Central Tax dated 30th December 2020, Due date for furnishing annual return for the FY 2019-2020 extended to 28.02.2021 [further extended to 31.03.2021 by NOTIFICATION NO. 04/2021 - Central Tax dated 28th February 2021]

Impact on s.73 of the Act, 2017

These notifications extending the period for filing the Annual Return have a corresponding effect on the period prescribed for passing orders.

This is how it works. Section 73(10) of the CGST Act stipulates that the proper Officer shall issue the order under Section 73(9) within three years from the due date for furnishing of Annual Return for the Financial Year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within three years from the date of erroneous refund.

Section 73(2) stipulates that the proper Officer shall issue the notice in terms with Section 73(1) at least three months prior to the time limit specified in Section 73(10) for issuance of order.

So, in an ideal situation it would have been -

The COVID meltdown & Force Majeure

Section 168A [Power of Government to extend time limit in special circumstances] of the CGST Act, 2017 was inserted in Act 12 of 2017 by The Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020, No. 38 of 2020 [received the assent of the President on 29 th September 2020 and is deemed to have come into force on the 31st day of March 2020 - s.1(2) of the Act, 2020 refers].

This is what is meant by 'force majeure' as per Section 168A -

Explanation.- For the purposes of this section, the expression "force majeure" means a case of war, epidemic, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature or otherwise affecting the implementation of any of the provisions of this Act.

Here is what the Orissa High Court mentioned about section 168A in its order dated 11 March 2022 - 2022-TIOL-429-HC-ORISSA-GST

When the OGST Act was enacted in 2017, in order to tide the situation like force majeure, appropriate legislation was not in place, however, conceiving the gravity of circumstances that prevailed over entire world and visualizing insurmountable difficulties faced by human beings, new provisions (s.168A) by way of amendment to the OGST Act have been inserted in tune with the provisions of the Taxation and other Laws (Relaxation of Certain Provisions) Ordinance, 2020 and the Taxation and other Laws (Relaxation of Certain Provisions) Act, 2020. [para 14]

Orders passed by Supreme Court - Force Majeure - IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [by exercising its power under Article 142 read with Article 141 of the Constitution of India].

++ Supreme Court - Order dated 27 March 2020 [2020-TIOL-77-SC-MISC-LB]

This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).

To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.

++ Supreme Court - Order dated 8 March 2021 - 2021-TIOL-122-SC-MISC-LB

Though, we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode. We are of the opinion that the order dated 15.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end.

1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.

2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.

++ Supreme Court - Order dated 10 January 2022 - 2022-TIOL-04-SC-MISC-LB

I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021 =   2021-TIOL-122-SC-MISC-LB, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. 

III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.

Exercising the powers under section 168A, the following notifications made their appearances -

35/2020-Central Tax, Dated: April 03, 2020 [Notification shall come into force with effect from the 20th day of March, 2020]

(i) where, any time limit for completion or compliance of any action, by any authority or by any person, has been specified in, or prescribed or notified under the said Act, which falls during the period from the 20th day of March, 2020 to the 29th day of June, 2020, and where completion or compliance of such action has not been made within such time, then, the time limit for completion or compliance of such action, shall be extended up to the 30th day of June, 2020, including for the purposes of--

14/2021-Central Tax, Dated: May 01, 2021 [Notification shall come into force with effect from the 15th day of April, 2021]

(i) where, any time limit for completion or compliance of any action, by any authority or by any person, has been specified in, or prescribed or notified under the said Act, which falls during the period from the 15th day of April, 2021 to the 30th day of May, 2021, and where completion or compliance of such action has not been made within such time, then, the time limit for completion or compliance of such action, shall be extended up to the 31st day of May, 2021, including for the purposes of--

13/2022-Central Tax, Dated: July 05, 2022 [Notification partially amends notifications 35/2020-CT dated 3rd April 2020 and 14/2021-CT dated 1st May 2021 - shall be deemed to have come into force with effect from the 1st day of March, 2020]

(i) extends the time limit specified under sub-section (10) of section 73 for issuance of order under subsection (9) of section 73 of the said Act, for recovery of tax not paid or short paid or of input tax credit wrongly availed or utilized, in respect of a tax period for the financial year 2017-18, up to the 30th day of September, 2023;

(ii) excludes the period from the 1st day of March, 2020 to the 28th day of February, 2022 for computation of period of limitation under sub-section (10) of section 73 of the said Act for issuance of order under subsection (9) of section 73 of the said Act, for recovery of erroneous refund;

(iii) excludes the period from the 1st day of March, 2020 to the 28th day of February, 2022 for computation of period of limitation for filing refund application under section 54 or section 55 of the said Act.

09/2023 - Central Tax; Dated: March 31, 2023 - [partial modification of notifications 35/2020-CT; 14/2021-CT and 13/2022-CT]

…the Government, on the recommendations of the Council, hereby, extends the time limit specified under sub-section (10) of section 73 for issuance of order under sub-section (9) of section 73 of the said Act, for recovery of tax not paid or short paid or of input tax credit wrongly availed or utilised, relating to the period as specified below, namely:-

(i) for the financial year 2017-18, up to the 31st day of December, 2023;

(ii) for the financial year 2018-19, up to the 31st day of March, 2024;

(iii) for the financial year 2019-20, up to the 30th day of June, 2024.

56/2023 - Central Tax; Dated: December 28, 2023 [partial modification of notifications 35/2020-CT; 14/2021-CT; 13/2022-CT and 09/2023-CT]

…the Government, on the recommendations of the Council, hereby, extends the time limit specified under sub-section (10) of section 73 for issuance of order under sub-section (9) of section 73 of the said Act, for recovery of tax not paid or short paid or of input tax credit wrongly availed or utilized, relating to the period as specified below, namely:-

(i) for the financial year 2018-19, up to the 30th day of April, 2024;

(ii) for the financial year 2019-20, up to the 31st day of August, 2024.

Note that for the financial year 2017-2018, the time limit has come to a close on 31st day of December 2023.

So, the fact of the matter is that the Central Government has extended the time limit specified u/s 73(10) for issuance of order u/s 73(9) [without any embargo of the same being within three years from the due date for furnishing of annual return (section 44) for the financial year to which the tax not paid/short paid or ITC wrongly availed or utilized relates to].

Obviously, the Central government made these extensions in exercise of its powers u/s 168A which considers the situations arising on account of the COVID pandemic and the force majeure that resulted therefrom.

Tabulating this entire discussion would look like this -

And, if this be so, the question is, should there be any application of the Supreme Court judgments (supra) and more benefits be extended by excluding the period from 15.03.2020 till 28.02.2022 while computing the limitation period mentioned in s.73(10) of the CGST Act, 2017 and which is, incidentally, already extended by the s.168A notifications 13/2022-CT, 9/2023-CT and 56/2023-CT.

The answer is, perhaps, in the negative because, obviously, it would tantamount to granting "extra benefits" to the department and render the notifications 13/2022-CT, 9/2023-CT and 56/2023-CT redundant.

And, therefore, these paragraphs from the latest Patna High Court decision [2024-TIOL-2054-HC-PATNA-GST] seem to be quite engrossing -

"33. The Government by the impugned notifications did not extend the limitation for the entire period granted by the Hon'ble Supreme Court. At the risk of repetition, the extended date of filing of return under Section 44(10) of the GST Act for the years 2017-18, 2018-19 and 2019-20 were respectively on 07.02.2020, 31.12.2020 and 31.03.2021. The three-year period under Section 73(10) of GST Act hence commences from such dates and would have normally expired respectively on 07.02.2023, 31.12.2023 and 31.03.2024. For the year 2017-18 the period between 15.03.2020 to 28.02.2022; 2 years minus 14 days come within the period of limitation. Hence the period of 1 year, 11 months and 16 days have to be excluded for the year 2017-18, which would take the limitation period to 21.01.2025.

34. Similarly, in the financial year 2018-19, the period between 01.01.2021 and 28.02.2022 should be excluded from the three-year period commencing from the extended date of filing amended returns for that year; i.e: between 31.03.2020 to 31.12.2023. The 01 year 02 months so excluded would extend the limitation from 31.12.2023 to 28.02.2025, for the assessment year 2018-19. Likewise, for the financial year 2019-20 the extended due date of filing of return falls on 31.03.2021 and the limitation under Section 73(10) of the GST Act extends upto 31.03.2024. The period excluded for reason of the Covid- 19 pandemic, coming within the period of limitation, hence would be 11 months which would enable extension of limitation under Section 73(10) of the GST Act from 31.03.2024 to 28.02.2025. The extended dates as per the notifications fall within the period of limitation; when the exclusion enabled by the Hon'ble Supreme Court; between 15.03.2020 and 28.02.2022 is applied.

35. For the assessment year 2017-18, the expiry of limitation on 31.03.2023 as per the Hon'ble Supreme Court's directions stand extended to 21.01.2025, that of 2018-19, which fell on 31.12.2023 stands extended to 28.02.2025 and that of 2019-20 falling on 31.03.2024 stands extended to 28.02.2025. None of these dates have reached and the orders impugned in these batch of cases are within the extension of limitation granted by the Hon'ble Supreme Court."

May be, the CBIC should come out with its views on the subject matter lest we enter into another excruciating legal battle.

Please also read - No Recommendation - No Notification?

Until next week.