Order of the High Court of Kerala
[dated 01.07.2024, in Raju Sreedharan v. Superintendent, Central Tax & Central Excise, from W.P. (C) No. 9681 of 2024]
In Anishia Chandrakanth v. Superintendent, Central Tax & Central Excise [W.P.(C) No.30644 of 2023], the Hon'ble High Court of Kerala (vide order dated dated 09.04.2024) observed as follows:
- It is not in dispute that the GST portal does not support payment of late fee for late filing GSTR-9C. Rather, the portal enables charging late fee for GSTR-9 only.
- Annual return in GSTR-9 filed without GSTR-9C may be deficient, attracting general penalty. However, late fee cannot be made applicable for regularising GSTR-9 by filing GSTR-9C.
- When the Government itself has waived late fee for non-filers of GSTR-9, there appears to be no justification in continuing with the notices for non-payment of late fee for belated filing of GSTR-9C, that too filed by the taxpayers before the date of commencement of the amnesty scheme.
Following the above decision, it was held that order demanding late fee on belated filing of GSTR-9C is set aside. However, the petitioner will not be entitled to refund of late fee already paid by him on belated filing of GSTR-9 (in excess of that stipulated under the waiver).
Comments
In paragraph 25 of the aforesaid order dated 09.04.2024, the differentiation between belated filing of GSTR-9 and GSTR-9C appears blurred.
Nevertheless, a registered person is liable to pay late fee under Section 47(2) of the CGST Act, 2017 only when he fails to furnish the "return" in FORM GSTR-9 under Section 44 ibid. It is important to note that: (i) GSTR-9C is only a "reconciliation statement" to be filed along with the annual return; and (ii) GSTR-9C is not a "return" as contemplated under Section 44 ibid.
Thus, in the absence of a legislative backing, it is apparent that late fee cannot be demanded for belated filing of Form GSTR-9C.
