The CBIC vide Notification No. 49/2019 - Central Tax dated October 09, 2019, has made certain important amendments in the CGST Rules, 2017 ("CGST Rules").

One of the important amendments is made in Rule 61(5) of the CGST Rules which deals with the "Form and manner of submission of monthly return" and states that where the time limit for furnishing FORM GSTR-1 and FORM GSTR-2 has been extended, then the Commissioner may, by
notification, specify the manner and conditions subject to which the return shall be furnished in FORM GSTR- 3B.
Said Rule has now been amended retrospectively w.e.f. July 1, 2017 in the following manner:

• GSTR-3B has been made a return specified under Section 39(1) of the CGST Act by incorporating the words "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".
• Also a proviso has been inserted which states that "where a return in FORM GSTR-3B is required to be furnished by a person referred to in sub-rule (1) then such person shall not be required to furnish the return in FORM GSTR-3."

Our Comments:
While addressing the dilemma prevailing over the industry qua the last date for availment of ITC for Financial Year 2017-18, the Hon'ble Gujarat High Court earlier in the matter of AAP & Co. vs Union of India [R/Special Civil Application No. 18962 of 2018 dated June 24, 2019], had categorically held that GSTR-3B is not a return under Section 39 of the CGST Act. Amongst others, it was keenly observed that Form GSTR-3B was not introduced as a return in lieu of return required to be filed in Form GSTR-3.
Further, the HC in another R/Special Civil Application No. 14624 of 2019 dated August 28, 2019 by AAP & Co, granted interim relief in writ challenging imposition of late fees for late filing of GSTR-3B under Section 47 of the CGST Act.
Seemingly, this retrospective amendment in Rule 61(5) of the CGST Rules, making GSTR-3B a return under Section 39 of the CGST Act, dodges the above decisions of the Hon'ble Gujarat HC.
For ease of reference, Rule 61(5) of the CGST Rules is given as under in comparison form:

 

Rule 61(5) - Prior to retrospective amendment

Rule 61(5) - After retrospective amendment

(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 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.

(5) 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: Provided that where a return in FORM GSTR-3B is required to be furnished by a person referred to in sub-rule (1) then such person shall not be required to furnish the return in FORM GSTR-3.";

Note: Sub-rule (6) has also been omitted with effect from the 1st July, 2017, which specified as under:
"(6) Where a return in FORM GSTR-3B has been furnished, after the due date for furnishing of details in FORM GSTR-2-
(a) Part A of the return in FORM GSTR-3 shall be electronically generated on the basis of information furnished through FORM GSTR-1, FORM GSTR-2 and based on other liabilities of preceding tax periods and PART B of the said return shall be electronically generated on the basis of the return in FORM GSTR-3B furnished in respect of the tax period;
(b) the registered person shall modify Part B of the return in FORM GSTR-3 based on the discrepancies, if any, between the return in FORM GSTR-3B and the return in FORM GSTR-3 and discharge his tax and other liabilities, if any;
(c) where 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"