Expert Speak Details


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CA. Ashok Batra


Important Points regarding FORM GSTR-9

Introduction

Every Registered Person, regardless of his Aggregate Turnover, shall electronically furnish an Annual Return in FORM GSTR-9, for every financial year on or before 31st December following the end of the financial year to which such Annual Return pertains. However, following persons shall not be required to furnish the Annual Return:

•     An Input Service Distributor (ISD);

•     A Person paying tax under Section 51 (TDS deductor);

•     A Person paying tax under Section 52 (TCS collector);

•     A Casual Taxable Person; and

•     A Non-Resident Taxable Person

Here, a confusion may arise in the minds of the readers with respect to furnishing Annual Return by the above mentioned persons who are also registered as a regular taxpayer. In such scenario the Author is of the view that the said person is liable to furnish the Annual Return in FORM GSTR-9. However, a person who is only registered as an ISD or a person paying tax under Section 51 (TDS) or a person paying tax under Section 52 (TCS) or casual taxable person or a non-resident taxable person shall get liberty from furnishing the Annual Return and not all the taxable persons.

Mandatory to furnish FORM GSTR-1 and FORM GSTR-3B for each month or quarter, as the case may be, for the Financial Year before furnishing Annual Return in FORM GSTR-9

It is mandatory to furnish all your returns in FORM GSTR-1 and FORM GSTR-3B for the Financial Year for which Annual Return is to be filed before furnishing the Anuual Return in FORM GSTR-9. Further, as GST has come into force with effect from 01.07.2017, therefore for the financial year 2017-18, a registered person is liable to furnish the details in the Annual Return for the period from July, 2017 to March, 2018.

Declaration of Additional Liability in FORM GSTR-9

A registered person may declare details of any additional tax liability, pertaining to the financial year for which Annual Return is being filed, which has not been declared/omitted from reporting in FORM GSTR-1 and FORM GSTR-3B filed during the said financial year or during April to September of the following financial year (till March 2019 for the first financial year as per Removal of Difficulty Order), in FORM GSTR-9. Though additional liability, if any, can be declared in FORM GSTR-9, however taxpayers can not claim input tax credit unclaimed during FY 2017-18 through this Annual Return.

Annual Return required to be furnished under each of the following situations:

(a)  Where a composition taxpayer switches over to pay tax under regular scheme at any point of time during a financial year.

Under this situation, such person shall be required to furnish two Annual Returns, one in FORM GSTR-9A for the period during which he had been registered as Composition Taxpayer and other in FORM GSTR-9 for the period during which he is registered as Regular Taxpayer.

Example 1

Mr. A is registered as a composition taxpayer since July, 2017 and switched over to regular tax scheme on 01.10.2017. Accordingly, Mr. A is liable to furnish Annual Return in FORM GSTR-9A for the period 01.07.2017 to 30.09.2017 and in FORM GSTR-9 for the period 01.10.2017 to 31.03.2018.

(b)  Cancellation of GST Registration during the financial year

In terms of Section 44(1) of the CGST Act, every registered person, barring the specified exclusions, shall be required to furnish Annual Return for every financial year in FORM GSTR-9. Consequently, a registered person shall be required to furnish aforesaid Annual Return for that part of the Financial Year for which he was registered. Thus, cancellation of Registration Certificate on or before the last day of the Financial Year is wholly immaterial.

Further, FORM GSTR-9 shall also be required to be furnished by a Registered Person who had applied for Cancellation of Registration Certificate but his application is pending for approval as on the last day of the financial year.

(c) Where a registered taxpayer has nil turnover in the relevant financial year

Annual Return in FORM GSTR-9 is required to be furnished by even those registered persons who had Nil Turnover in the relevant financial year.

Furnishing Annual Return in FORM GSTR-9 in case of Multiple GST Registrations under same PAN

In terms of Section 44(1) of the CGST Act, it is mandatory for all the registered persons to furnish Annual Return in FORM GSTR-9 or FORM GSTR-9A, as the case may be. Further in terms of Section 25(4) of the CGST Act, a person who has obtained or is required to obtain more than one registration shall be treated as distinct persons in respect of each such registration. Therefore, a person having multiple GST Registrations, shall be required to furnish Annual Return for every GSTIN separately.

No Revision of Annual Return once it is Furnished

The Government by issuing press release, Dated 7th March, 2019 has made it clear that a registered person cannot revise the Annual Return once furnised and submitted. In this context, it is relevant to mention here that nothing has been specified in the CGST Act or Rules regarding revision of Annual Return. However, it is clearly mentioned on the GST portal that revision in Annual Return cannot be made. Therefore, it is highly recommended and suggested to be very cautious and attentive while furnishing details in Annual Return.

Levy of late fee in case of late furnishing or non-furnishing of Annual Return in FORM GSTR-9

In terms of Section 47(2) of the CGST Act, a registered person shall be liable to pay late fee if he delays or fails to furnish Annual Return till due date of filing the same. The language used in the section contains the term ‘shall’ which shows the mandatory nature of levying late fee. To say it differently, the Author is of the view that it is mandatory to pay late fee by a registered person in case of late furnishing or non- furnishing of Annual Return. In terms of Section 47(2), late fee for delayed furnishing or non-furnishing of Annual Return in FORM GSTR-9 shall be lower of the following:

(a) Rs. 200 per day [Rs. 100 each under the CGST Act and the respective SGST Act] during which failure continues;

(b) 0.50% of the turnover in the State or Union territory [0.25% each under the CGST Act and the respective SGST Acts]

Example 2

Kirti Ltd of Punjab Provides the following information:

Due Date of Furnishing Annual Return

31st December

Date of furnishing Annual Return

28th February

Delay in furnishing Annual Return

59 days (31 for the month of Jan & 28 for the month of Feb)

Turnover in the State of Punjab for the relevant year

Rs. 90 Lakh

In the above situation the late fee to be paid shall be computed as under:

(i)

Rs. 200 per day [Rs. 100 each under the CGST Act and the SGST Act] during which failure continues

Rs. 11,800/- [Rs. 200 * 59 days)

(ii)

0.50% of the turnover in the State or Union territory [0.25% each under each under the CGST Act and the SGST Act]

Rs. 45,000/- [0.50% * Rs. 90 Lakh]

Thus, Kirti Limited shall pay late fee of Rs. 11,800/-

 

Example 3

Above Example 2 is amended and it is presumed that Turnover in the State of Punjab for the relevant year is Rs. 20 Lakh. In the amended situation the late fee to be paid shall be computed as under:

(i)

Rs. 200 per day [Rs. 100 each under the CGST Act and the SGST Act] during which failure continues

Rs. 11,800/- [Rs. 200 * 59 days)

(ii)

0.50% of the turnover in the State or Union territory [0.25% each under each under the CGST Act and the SGST Act]

Rs. 10,000/- [0.50% * Rs. 20 Lakh]

Thus, Kirti Limited shall pay late fee of Rs. 10,000/-

In the above example, delay in furnishing the return shall be computed from 1st day of January itself and late fee shall be levied for 1st January also (i.e. from 31st December mid-night).

Further, it is important to bring to the notice of readers that if a registered person fails to furnish Annual Return, a notice shall be issued to him under Section 46 of the CGST Act requiring him to furnish such return within 15 days. In this case also, such registered person is liable to pay late fee in terms of Section 47(2) of the CGST Act i.e. if consequent upon receipt of notice u/s 46, he files the Annual Return before expiry of 15 days, then also he shall be liable to pay late fee for the number of days during which such failure continues.

Example 4

Mr. A fails to furnish the Annual Return by the due date of 31st December. Consequently, he receives a notice under Section 46 requiring him to furnish the return within 15 days i.e. say by 25th January. However, Mr. A furnished the Return on 30th January. In this case, Mr. A shall be liable to pay late fee for 30 days (ie. from 1st January to 30th January) and not for only 5 days (i.e. from 26th January to 30th January).

Power to Waive Late Fee for failure to Furnish/ Late furnishing of FORM GSTR-9

Section 128 of the CGST Act, inter alia, provides that the Government may by Notification, waive in part or full any late fee referred to in Section 47 for such class of taxpayers and under such mitigating circumstances as may be specified in the Notification on the recommendations of the Council.

Note – Provisions relating to “Audit” under CGST Act have also been made applicable to IGST Act vide Section 20 of the IGST Act, 2017.

 

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Disclaimer: Above expressed are the personal views of the author, and the publisher or the author disclaim all, and any liability and responsibility, to any person on any action taken on reliance of it.