Waiver of GSTR 3B late fee - A Mirage of taxpayer

Waiver of late fee on late filing of GSTR-3B for August and September, 2017 - A Mirage of taxpayer or a half-truth by Government.

Ministry of Finance vide a press Release dated October 24, 2017 announced that in order to further facilitate taxpayers, the authority has decided to waive the late fee on filing of GSTR 3B for the months of August and September, 2017.

Further, the Ministry also stated that Electronic cash ledger of the taxpayers who have already paid the late fee on filing of GSTR-3B either for the month of August or September 2017 will be credited with the amount of late fee so paid by them.

Same is notified by the Government vide Notification No. 50/2017 - Central Tax dated October 24, 2017 ('Said Notification'). Extract of Said Notification is reproduced here for reader's quick reference;

'In exercise of the powers conferred by section 128 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby waives the late fee payable under section 47 of the said Act, for all registered persons who failed to furnish the return in FORM GSTR-3B for the months of August and September, 2017 by the due date.'

These Notification draw two important points;            

• First, it is issued under Section 128 of CGST Act, 2017.
• Secondly, it waives off the late fee levied under Section 47 of CGST Act, 2017

What makes the whole process very tangled is the legislative power of Government under Section 128 of CGST Act, 2017. Section 128 empowers the Government to waive any penalty referred to in Section 122 ('Penalty for certain offences') or section 123 ('Penalty for furnish of information Return') or Section 125 ('General Penalty') or any late fee referred to in Section 47of CGST Act, 2017. ('Levy of Late fee if a person fails to furnish return u/s 37, 38, 39 or 45 on due date').

Point to be noted, it empowers the government to waives the penalty and not to re-credit the same

Now, the dictionary meaning of waiver is to refrain from insisting on or using (a right or claim) and it does not include refund into its ambit. Basically, wavier of anything is done before accepting any right and claim and returning anything after collecting it is termed as refund and not wavier.

Therefore, in the title of this write up I referred the said press release a mirage of taxpayer or a perfect half-truth by the government. Legally, if someone refers to the provision of CGST Act, 2017 and rules made thereunder Government has no any power to refund the late fee already collected under Section 47 by issuing notification under Section no. 128. It can just be waved off in full or in part.

Further, the taxpayers should also take a note of the said notification which only takes about waives of late fees and not about re-crediting of late fees already collected in cash ledger i.e. 'PMT -05'. Hence, getting Re- credit of late fee already paid by the taxpayer looks like a Chimerical Act.

Disclaimer: Views expressed are strictly personal