SHARE

| Dec-20-2021

Whether Form GSTR-3B is a return or not under the CGST Law

The Hon’ble Supreme Court of India in Union of India & Ors. v. Aap and Company [Civil Appeal No(s). 5978/2021 dated December 10, 2021] reversed the judgment of the Hon’ble Gujarat High Court, ruling that FORM GSTR-3B is not a return under Section 39 of the Central Goods and Services Tax Act, 2017 (“the CGST Act”).

Noted that, the Hon’ble Gujarat High Court in AAP and Co. v. Union of India [R/Special Civil Application No. 18962 of 2018 dated 24.06.2019] had held that, Form GSTR-3B is not a return under Section 39 of the CGST Act and it is only a temporary stop gap arrangement till due date of filing the return in Form GSTR-3 is notified.

Stated that, the judgment in AAP and Co. (ibid) has been expressly overruled by a three-Judge Bench by the decision of the Hon’ble Supreme Court of India in Union of India v. Bharti Airtel Ltd. & Ors., [Civil Appeal No.6520 of 2021 dated October 28, 2021]

Held that, the appeal succeeds on the same terms as in Bharti Airtel Ltd. & Ors. (ibid).

Our Comments:

The issue before the Hon’ble Supreme Court of India in Bharti Airtel Ltd. & Ors. (ibid) was whether Form GSTR- 3B can be allowed to be rectified or not. Hon’ble Supreme Court of India disallowed the assessee to unilaterally carry out rectification of his returns submitted electronically in Form GSTR­-3B, which inevitably would affect the obligations and liabilities of other stakeholders, because of the cascading effect in their electronic records.

Thus, the issue in the Bharti Airtel Ltd. & Ors. (ibid) was entirely different from the AAP and Co. (supra) and constitutionality of amendment in Rule 61(5) of the Central Goods and Services Tax Rules, 2017 (“the CGST Rules”) vide Notification No. 49/2019 – Central Tax dated October 09, 2019 w.e.f. July 01, 2017 was not challenged in Bharti Airtel Ltd. & Ors. (supra).

Thus, observations made in the Bharti Airtel Ltd. & Ors. (ibid) w.r.t Form GSTR-3B being a return or not is not the ratio decidendi but obiter dictum thus, the question arises whether the Hon’ble Supreme Court of India in AAP and Co. (supra) can rely entirely on Bharti Airtel Ltd. & Ors. (supra) to reverse the judgment given by the Hon’ble Gujarat High Court in AAP and Co. (supra)?

To know the answer, kindly watch “Diagnosis of SC Judgment - GSTR 3B is a Return u/s 39 of the CGST Act || CA Bimal Jain” by CA Bimal Jain at: https://www.youtube.com/watch?v=R-NsOXY68FI

(Author can be reached at info@a2ztaxcorp.com)

DISCLAIMER: The views expressed are strictly of the author and A2Z Taxcorp LLP. The contents of this article are solely for informational purpose and for the reader’s personal non-commercial use. It does not constitute professional advice or recommendation of firm. Neither the author nor firm and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any information in this article nor for any actions taken in reliance thereon. Further, no portion of our article or newsletter should be used for any purpose(s) unless authorized in writing and we reserve a legal right for any infringement on usage of our article or newsletter without prior permission.

Similar reads

ITC ineligible on CSR activities being excluded from normal course of business

The AAR, Gujarat in the matter of M/S. Adama India Private Limited [Advance Ruling No. GUJ/GAAR/R/44/2021 dated August 11, 2021] held that, no Input Tax Credit (“ITC”) would be available for Corporate

Dec-20-2021

Read More

GST leviable on reimbursement of electricity and water charges and to be included in the value of supply

The AAR, Maharashtra in the matter of M/s. Indiana Engineering Works (Bombay) Pvt. Ltd. [Advance Ruling No. GST-ARA-120/2019-20/B-114 dated December 16, 2021] held that, GST payable on electricity

Dec-20-2021

Read More

Widened the scope of Section 83 of the CGST Act (Provisional Attachment of Property/ Bank Account) w.e.f. January 01, 2022

The Hon’ble Finance Minister, in Union Budget 2021-22, proposed changes vide the Finance Bill, 2021, that amends the Central Goods and Services Tax Act, 2017 (“the CGST Act”) with respect to provision

Dec-20-2021

Read More

Notified the amendments proposed in Section 74, 107, 151, 152 and 168 of the CGST Act, 2017 w.e.f. January 01, 2022

The Hon’ble Finance Minister, in Budget 2021-22, proposed changes vide the Finance Bill, 2021, that amends the Central Goods and Services Tax Act, 2017 (“the CGST Act”) with respect to amendments

Dec-20-2021

Read More

Notified clarification w.r.t recovery of self-assessed tax w.e.f. January 01, 2022

The Hon’ble Finance Minister, in Union Budget 2021-22, proposed changes vide the Finance Bill, 2021, that amends the Central Goods and Services Tax Act, 2017 (“the CGST Act”) with respect to recovery

Dec-20-2021

Read More