Whether Due date of GSTR-3B /GSTR-1 is really extended in view of COVID-19 ?

[Sushil Singh]

In view of COVID -19 crisis the Government has given various relief to the taxpayers in the form of conditional partial waiver of  interest and waiver of late fees in case returns required to be filed under GST provisions namely GSTR-1 and GSTR-3B are filed beyond due date originally prescribed vide notification 28/2020 & 29/2020 dated 23.03.2020. Queries has been raised whether only waiver of interest and late fees has been given by government or due dates as prescribed under the GST provisions has itself been extended.

In this regards following provisions of the GST law is relevant for discussions:

Second proviso to Section 37 of the CGST Act reads as “Commissioner may, for reasons to be recorded in writing, by notification, extend the time limit for furnishing outward supplies in GSTR-1 for such class of taxable persons as may be specified therein”

Sub-section 6 of section 39 governing GSTR-3B reads as “The Commissioner may, for reasons to be recorded in writing, by notification, extend the time limit for furnishing the returns under this section for such class of registered persons as may be specified therein”

The requirement of filing form GSTR-3B for the period April 2020 to Sep 2020 is now governed by the Notification No. 29/2020 dated 23.03.2020 as new return system proposed from 01.04.2020 is deferred

Section 168 of CGST Act gives powers to the Board by which  “The Board may, if it considers it necessary or expedient so to do for the purpose of uniformity in the implementation of this Act, issue such orders, instructions or directions to the central tax officers as it may deem fit, and thereupon all such officers and all other persons employed in the implementation of this Act shall observe and follow such orders, instructions or directions”

Sub rule 5 Rule 61 of CGST rules provides that where the time limit for furnishing of details in FORM GSTR-1 under section 37 or in FORM GSTR-2 under section 38 has been extended, the return specified in sub-section (1) of section 39 shall, in such manner and subject to such conditions as the Commissioner may, by notification, specify, be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner

Now coming to the recent relevant notifications which has been issued by the Government keeping in mind the COVID-19 crisis:

Notification no 36 dated 03.04.2020  states that  taxpayers having an aggregate turnover of more than rupees 5 crore rupees in the previous financial year may file GSTR-3B  for the Month of May 2020 on or before the 27th June, 2020

The said notification also provides that taxpayers having an aggregate turnover upto rupees 5 crore rupees in the previous financial year may file GSTR-3B  for the Month of May 2020 on or before the 12^th July/14^th July , 2020 depending upon the states they belong to.

However at the same time , Notification no 35 dated 03.04.2020 states that compliances which was/are due between 20th day of March, 2020 to the 29th day of June, 2020 has not been extended and for GSTR-1/GSTR-3B required to be filed on originally prescribed due dates. However relaxation by partial waiver of interest and late fees will be given in case there is any delay in filing such returns which is covered in Notifications 31/32/33-2020 dated 03.04.2020 .

Notification 35 dated 03.04.2020 has created exception in not extending GSTR-3B/GSTR-1 in following manner:

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 upto the 30th day of June, 2020

…..

 but, such extension of time shall not be applicable for the compliances of the provisions of the said Act, as mentioned below -

..

(b) sub-section (3) of section 10, sections 25, 27, 31, 37( GSTR-1), 47, 50, 69, 90, 122, 129;

(c) Section 39 ( GSTR-3B), except sub-section (3), (4) and (5);

….

Based on above notifications/ existing  provisions of GST law , following are the conclusions

1. There is no change in ‘due dates’ of filing GSTR-3B and GSTR-1 return and therefore taxpayers may follow normal schedule of filing the management wishes that there should not be any delay in filing of statutory returns.
2. It is only that the dates for filing GSTR-3B and GSTR-1 returns without payment of late fees have been extended not the due dates itself
3. If the returns have been filed after original due dates but on or before “extended dates for waiver of interest and late fees”, late fee will not be payable. Further, interest will be reduced/waived, only if returns are filed and taxes are paid on or before extended date
4. Interest @ 18% normal rate & late fee is payable from original due date & not from ‘extended date for the purpose of Late fee and interest waiver’
5. What is important here is to understand distinction between ‘due date’ & ‘extended date for specific purpose of late fees and interest waiver
6. Therefore the taxpayers are required to follow normal schedule of filing GSTR-3B and GSTR-1 as provided under Notification No. 28/2020 & 29/2020 dated 23.03.2020 respectively
7. due dates’ for filing GSTR-1 return have not been changed, late fee is not payable if GSTR-1 returns for March, 2020, April, 2020 and May, 2020, and for the quarter ending 31st March, 2020 are filed before 30-6-2020
8. However one good amendment has been made is remove rule 36(4) till August 2020 and condition of restricting input credit  will now apply cumcumulatively for the period February, March, April, May, June, July and August, 2020 and will be calculated so for the return in FORM GSTR-3B for the tax period September, 2020.