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"