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TMI Blog2019 (7) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons, shall furnish a monthly return in such form and manner as may be prescribed. Rule 61 of the CGST Rules/GGST Rules prescribes the form and manner of submission of monthly return. Sub-rule 1 of Rule 61 of the CGST Rules/GGST Rules provides that the return required to be filed in terms of Section 39(1) of the CGST/GGST Act is to be furnished in Form GSTR-3. It would be apposite to state that initially it was decided to have three returns in a month, i.e. return for outward supplies i.e. GSTR-1 in terms of Section 37, return for inward supplies in terms of Section 38, i.e. GSTR-2 and a combined return in Form GSTR-3. However, considering technical glitches in the GSTN portal as well as difficulty faced by the tax payers it was decided to keep filing of GSTR-2 and GSTR-3 in abeyance. Therefore, in order to ease the burden of the taxpayer for some time, it was decided in the 18th GST Council meeting to allow filing of a shorter return in Form GSTR-3B for initial period. It was not introduced as a return in lieu of return required to be filed in Form GSTR-3. The return in Form GSTR-3B is only a temporary stop gap arrangement till due date of filing the return in Form GSTR-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. To issue writs(s) and/or direction(s) in the nature of prohibition commanding the Respondents, their servants, agents and/or subordinates from resorting to any coercive measure during the pendency of the writ petition before this Hon'ble Court; d. To issue order(s), direction(s), writ(s) or any other relief(s) as this Hon'ble Court deems fit and proper in the facts and circumstances of the case and in the interest of justice; e. To issue Rule Nisi in terms of prayers (a) to (g) above; f. To Grant ad-interim reliefs in terms of prayers above; g. To award Costs of and incidental to this application be paid by the Respondents. 2. The case of the writ-applicant, in his own words as pleaded in the writ-application, is as follows : 3. It is submitted that the writ-applicant is a practicing Chartered Accountant having GST registration No. 24AARFA8951B1ZF. It is submitted that Section 16(4) of the Central Goods and Services Tax Act, 2017 (for short, 'the CGST Act')/Gujarat Goods and Services Tax Act, 2017 (for short, 'the GGST Act') provides that a registered person shall not be entitled to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of section 10 shall, for each quarter or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, of turnover in the State or Union territory, inward supplies of goods or services or both, tax payable and tax paid within eighteen days after the end of such quarter. (3) Every registered person required to deduct tax at source under the provisions of section 51 shall furnish, in such form and manner as may be prescribed, a return, electronically, for the month in which such deductions have been made within ten days after the end of such month. (4) Every taxable person registered as an Input Service Distributor shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, within thirteen days after the end of such month. (5) Every registered non-resident taxable person shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, within twenty days after the end of a calendar month or within seven days after the last day of the period of registration specified under sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 39 in Form GSTR-3 electronically through the common portal either directly or through a Facilitation Centre notified by the Commissioner. It is further submitted that sub-rule (5) of Rule 61 of the Central Goods and Services Tax Rules (for short, 'the CGST Rules')/Gujarat Goods and Services Tax Rules (for short, 'the GGST Rules') provides that where the time limit for furnishing of the details in Form GSTR-1 under Section 37 and in Form GSTR-2 under Section 38 has been extended and the circumstances so warrant, the Commissioner may, by notification, specify the manner and conditions subject to which the return shall be furnished in Form GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner. 9. It is submitted that Rule 61 of the CGST/GGST Rules relating to the form and manner of submission of monthly return reads thus : 61: Form and Manner of Submission of Monthly Return - (1) Every registered person other than a person referred to in section 14 of the Integrated Goods and Services Tax Act, 2017 or an Input Service Distributor or a non-resident taxable person or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the amount of input tax credit in FORM GSTR-3 exceeds the amount of input tax credit in terms of FORM GSTR-3B, the additional amount shall be credited to the electronic credit ledger of the registered person. 10. It is submitted that the bare perusal of Rule 61 of the CGST/GGST Rules would indicate that the return prescribed in terms of Section 39 is a return required to be furnished in Form GSTR-3 and not GSTR-3B. 11. It is submitted that in the notification no.10/2017 Central Tax dated 28th June 2017 it was provided in terms of sub-rule (5) of Rule 61 of the CGST Rules that where the time limit for furnishing of details in Form GSTR-1 under Section 37 and in Form GSTR-2 under Section 38 has been extended and the circumstances so warrant, return in Form GSTR-3B, in lieu of Form GSTR-3, may be furnished in such manner and subject to such conditions as may be notified by the Commissioner. An analogous notification no.10/2017 State Tax (Rate) dated 30 th June 2017 was also issued by the Government of Gujarat under the GGST Rules. 12. It is submitted on behalf of the writ-applicant that sub-rule (5) of Rule 61 of the CGST Rules was retrospectively am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form GSTR-3B was taken in the 18th GST Council held on 30 th June 2017 on account of the reason stated as 'shorter return for first two months of roll out'. It has not been introduced as a return in substitute of return to be filed in form GSTR-3. Therefore, it is quite obvious that return in form GSTR-3B is only a temporary stop gap arrangement till due date of filing return in form GSTR-3 is notified in the GSTN portal. It is therefore, submitted that it is quite obvious that the return to be filed in form GSTR-3 is the final return for taking additional input tax credit as well as discharging of additional tax liabilities after filing of return in form GSTR-3B. It is, therefore, submitted that the last date for availing the input tax credit relating to the invoices issued during the period from July 2017 to March 2018 is the last date for filing of the return in form GSTR-3 and not GSTR-3B. 16. It is submitted that para 3 of the press release dated 18 th October 2018 says that, With taxpayers self-assessing and availing ITC through return in FORM GSTR-3B, the last date for availing ITC in relation to the said invoices issued by the corresponding supplier(s) d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, return in FORM GSTR-3B, in lieu of FORM GSTR-3, may be furnished in such manner and subject to such conditions as may be notified by the Commissioner. 2. It was pointed out that the Central Government realising its mistake thereafter, vide Notification No.17/2017-Central Tax dated 27th July, 2017 notified the the Central Goods and Services Tax (Fourth Amendment) Rules, 2017 whereby sub- rule (5) of rule 61 came to be substituted as follows :- (5) Where the time limit for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, the Commissioner may, by notification, specify that return shall be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner. 3. It was submitted that, therefore, FORM GSTR-3B is not in lieu of FORM GSTR-3 and is applicable only in the circumstances stipulated under sub-rule (5) of rule 61 of the rules. 4. Referring to the impugned press release, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f trade the due date has been extended upto 31st August, 2019. The due date of filing of GSTR-3B for the month of September, 2018 was 20th October, 2018. 3. In view of above as per Section 16(4) of the CGST Act, 2017 the last date for taking input tax credit for the period 2017-18 should be 25th October, 2018 and accordingly the Press release dated 18.10.2018 was issued. However, on request of the trade due date of filing of GSTR-3B was extended upto 25th October, 2018. 4. The petitioner is contending that GSTR-3B is not a return under Section 39 of the CGST Act, 2017 and hence its due date cannot be considered for Section 16(4) of the CGST Act, 2017 and hence the due date for filing the annual return of 2017-18 should be the last date for taking input tax credit for the F.Y. 2017-18. Section 39(1) reads as under : (1) Every registered person, other than an Input Service Distributor or a non-resident taxable person or a person paying tax under the provisions of section 10 or section 51 or section 52 shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, of inward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 39(1) of the said Act has to be read along with rule 61(5) of the said Rules which provides for the filing of FORM GSTR-3B and reads as Where the time limit for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, the Commissioner may, by notification, specify the manner and conditions subject to which the return shall be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner . Thus, it is amply clear that FORM GSTR-3B is a return which is to be furnished under section 39 of the said Act. 16. With regard to para 2.21 to 2.23 of the petition, I say that Section 39(1) of the said Act has to be read along with rule 61(5) of the said Rules which provides for the filing of FORM GSTR-3B and reads as Where the time limit for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, the Commissioner may, by notification, specify the manner and conditions subject to which the return shall be furnished in FORM GS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended and the circumstances so warrant, the Commissioner may, by notification, specify the manner and conditions subject to which the return shall be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner . Thus, it is amply clear that FORM GSTR-3B is a return which is to be furnished under section 39 of the said Act. From above, it is evident that the impugned press release has rightly publicised the last date for availing ITC to be the last date for the filing of return in FORM GSTR-3B for the month of September, 2018 i.e. 20th October, 2018 and therefore, is not contrary to the section 16(4) of the said Act read with section 39(1) of the said Act, read with rule 61 of the said Rules. Further, the Hon'ble High Court of Delhi in its order dated 26.11.2018 on W.P.(C) 9019/2017 CM APPL. No.36921/2017, in the matter of Anil Goel and Associated versus Union of India Ors., has accepted that learned counsel for the respondent has drawn our attention to the counter affidavit filed on behalf of the Commissioner of Central Tax, GST, Delhi-east, wherein it has been stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein it has been stated that the return filed in FORM GSTR-3B is not in addition to the return in FORM GSTR-3. Rule 61(5) of the Rules prescribe that where time for furnishing of details/returns in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 are extended, the Commissioner may, by notification specify that return may be filed under GSTR-3B. In other words, wherever the Commissioner has issued notification in terms of sub-rule 5 of Rule 61, the assessee would be required to file return in FORM GSTR-3B and not in FORM GSTR-3. Learned counsel for the petitioner is substantially satisfied as the statement made clarifies that FORM GSTR-3B and not GSTR-3 is to be filed in case covered by Rule 61(5) of the Rules . 20. With regard to Grounds K to M of the petition, I say that whatever is stated in Grounds K to M is totally disputed and denied in toto and the petitioner is put to strict proof of whatever is stated in Grounds K to M. I say that the petitioner has wrongly contended that unless GSTR-1 of outward supplies is filed it will not possible for tax payer to calculate the amount of credit for the purpose of availment. Para 4 of press release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, the Commissioner may, by notification, specify the manner and conditions subject to which the return shall be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner . Thus, it is amply clear that FORM GSTR-3B is a return which is to be furnished under section 39 of the said Act. From above, it is evident that the impugned press release has rightly publicised the last date for availing ITC to be the last date for the filing of return in FORM GSTR-3B for the month of September, 2018 i.e. 20th October, 2018 and therefore, is not contrary to the section 16(4) of the said Act read with section 39(1) of the said Act read with rule 61 of the said Rules. Further, the Hon ble High Court of Delhi in its order dated 26.11.2018 on W.P.(C) 9019/2017 CM APPL. No. 36921/2017, in the matter of Anil Goel and Associated versus Union of India Ors, has accepted that learned counsel for the respondent has drawn our attention to the counter affidavit fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corresponding supplier(s) and the facility to view the same in FORM GSTR-2A by the recipient is in the nature of taxpayer facilitation and does not impact the ability of the taxpayer to avail ITC on self-assessment basis in consonance with the provisions of section 16 of the Act. The apprehension that ITC can be availed only on the basis of reconciliation between FORM GSTR-2A and FORM GSTR-3B conducted before the due date for filing of return in FORM GSTR-3B for the month of September, 2018 is unfounded as the same exercise can be done thereafter also. 5. It may, however, be noted that the Government has extended the last date for furnishing of return in FORM GSTR-3B for the month of September, 2018 for certain taxpayers who have been recently migrated from erstwhile tax regime to GST regime vide notification No. 47/2018- Central Tax dated 10th September, 2018. For such taxpayers, the extended date i.e. 31st December, 2018 or the date of filing of annual return whichever is earlier will be the last date for availing ITC in relation to the said invoices issued by the corresponding suppliers during the period from July, 2017 to March, 2018. 6. All the taxpay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish the declaration in FORM GST ITC-04, relating to job work, the due date for furnishing the said form for the period July, 2017 to June, 2019 to be extended till 31.08.2019 4. Certain amendments to be carried out in the GST laws to implement the decisions of the GST Council taken in earlier meetings. 5. Rule 138E of the CGST rules, pertaining to blocking of e-way bills on non-filing of returns for two consecutive tax periods, to be brought into effect from 21.08.2019, instead of the earlier notified date of 21.06.2019 6. Last date for filing of intimation, in FORM GST CMP-02, for availing the option of payment of tax under notification No. 2/2019-Central Tax (Rate) dated 07.03.2019, to be extended from 30.04.2019 to 31.07.2019 ***** (Note: The recommendations of the GST Council have been presented in this release in simple language for information of all stakeholders. The same would be given effect through relevant Circulars/Notifications which alone shall have the force of law.) 25. Thus, according to Mr.Desai, the grievance as redressed in the writ-application would not survive and the petition be disposed of accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return required to be filed in terms of Section 39(1) of the CGST/GGST Act is to be furnished in Form GSTR-3. 30. It would be apposite to state that initially it was decided to have three returns in a month, i.e. return for outward supplies i.e. GSTR-1 in terms of Section 37, return for inward supplies in terms of Section 38, i.e. GSTR-2 and a combined return in Form GSTR-3. However, considering technical glitches in the GSTN portal as well as difficulty faced by the tax payers it was decided to keep filing of GSTR-2 and GSTR-3 in abeyance. Therefore, in order to ease the burden of the taxpayer for some time, it was decided in the 18th GST Council meeting to allow filing of a shorter return in Form GSTR-3B for initial period. It was not introduced as a return in lieu of return required to be filed in Form GSTR-3. The return in Form GSTR-3B is only a temporary stop gap arrangement till due date of filing the return in Form GSTR-3 is notified. Notifications are being issued from time to time extending the due date of filing of the return in Form GST- 3, i.e. return required to be filed under Section 39 of the CGST Act/GGST Act. It was notified vide Notification No.44/2018 Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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