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of <h1>Dismissal upholds Section 47(2) late fee for failing to file 2021-22 annual GST return GSTR-9</h1> <h3>M/s. New Shivsakthi Traders, Proprietor of Natarajan Vijayalakshmi Versus The Assistant Commissioner (ST), Tuticorin</h3> HC dismissed the writ petition and upheld imposition of late fee under Section 47(2) of the Tamil Nadu GST Act for failure to furnish the annual return ... Non-furnishing of Annual Return (GSTR-9) - Levy of late fee u/s 47(2) of the Tamil Nadu Goods and Services Tax Act, 2017 - violation of Section 44 read with Rule 80 of the Tamil Nadu Goods and Services Tax Act, 2017 - assessment year 2021-2022 - HELD THAT:- The petitioner has not come forward to file the return within three years. Even if notice in GSTR 3 was issued to the petitioner to file a return in GSTR 3A as per Rule 68 of the respective Goods and Services Tax Rules the petitioner would still be liable to pay late fee under Section 47 (2) of the Act, as per which any registered person who fails to furnish the return required under Section 44 of the Act by the due date shall be liable to pay a late fee of Rs. 100 for every day during which such failure continuous subject to a maximum of an amount calculated at a quarter per cent of his turnover in the State or Union territory. There is no merit in challenge to the impugned order. The writ petition is liable to be dismissed and accordingly, dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether issuance of a notice in Form GSTR-3A under Rule 68 and Section 46 is a mandatory precondition to initiation of liability for late fee under Section 47(2) for failure to furnish the annual return in Form GSTR-9 under Section 44. 2. Whether the failure to issue a Form GSTR-3A notice in accordance with Paragraph 4 of Circular No.129/2019 vitiates assessment of late fee under Section 47(2) when the return could have been filed within the three-year period prescribed by Section 44(2). 3. Whether, having regard to the statutory time-bar in Section 44(2), the respondent was time-barred from requiring filing or imposing late fee for the tax period 2021-2022. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Mandatory nature of Form GSTR-3A notice as precondition to levy of late fee under Section 47(2) Legal framework: Section 44(1) prescribes filing of annual return (Form GSTR-9) electronically; Section 44(2) imposes a three-year cut-off for furnishing such return; Rule 68 requires electronic issuance of notice in Form GSTR-3A to a registered person who fails to furnish returns under Section 39, 44, 45 or 52; Section 47(2) prescribes a late fee of Rs.100 per day (subject to a statutory maximum calculated at one-quarter percent of turnover) for failure to furnish the return required under Section 44 by the due date. Precedent treatment: The Court did not rely on or cite precedent to alter the statutory scheme; no prior judicial pronouncements were followed, distinguished or overruled in the judgment. Interpretation and reasoning: The Court treats the obligation to file returns under Section 44 as primary and the liability for late fee under Section 47(2) as statutory consequence of non-filing by the due date. Rule 68's requirement to issue Form GSTR-3A is procedural and directed at facilitating compliance; however, absence of such notice does not extinguish or negate the statutory obligation to file or the statutory levy of late fee where the time to file remains open under Section 44(2). The Court reasons that even if a GSTR-3A notice had been issued, the petitioner would still have been liable to pay the late fee prescribed by Section 47(2) for the period of delay. Ratio vs. Obiter: Ratio - A procedural lapse in issuing Form GSTR-3A under Rule 68 does not, by itself, negate liability under Section 47(2) for failure to furnish the annual return under Section 44 when the statutory time for filing remains available. Obiter - Observations on the purpose of Rule 68 and the administrative role of notices to induce compliance. Conclusion: The absence of a Form GSTR-3A notice is not a bar to imposing late fee under Section 47(2) where the statutory liability arises from non-filing under Section 44. Issue 2 - Effect of Circular No.129/2019 (Para 4) on validity of show-cause and levy of late fee Legal framework: Circular No.129/2019 provides administrative guidance on issuance of notices (including Form GSTR-3A) and procedures to be followed by tax authorities; statutory authority for notices and levy remains embedded in Sections 44, 46, 47 and Rule 68. Precedent treatment: No judicial authority was invoked to convert the Circular into a binding condition precedent; the Court did not treat the Circular as superseding statutory provisions or Rule 68. Interpretation and reasoning: The Court acknowledges the petitioner's contention that the Circular and Paragraph 4 prescribe a specific sequence (issuance of GSTR-3A) but holds that non-compliance with the Circular does not discharge the statutory obligation to file the annual return or penalize the taxpayer with a lesser statutory consequence. The Circular is administrative guidance and does not operate to erase the statutory consequence of non-filing; accordingly, while issuance of a GSTR-3A in accordance with the Circular may be proper administrative practice, its omission does not render the imposition of late fee unlawful where the statutory conditions for levy are met. Ratio vs. Obiter: Ratio - Non-observance of administrative guidance in Circular No.129/2019 does not invalidate imposition of statutory late fee under Section 47(2). Obiter - Remarks regarding administrative propriety of following the Circular and the utility of notices to secure compliance. Conclusion: Failure to follow Paragraph 4 of Circular No.129/2019 in issuing a Form GSTR-3A does not vitiate the show-cause process or the levy of late fee under Section 47(2) where statutory defaults under Section 44 exist. Issue 3 - Effect of Section 44(2) three-year cut-off on notice issuance and liability for the assessment period 2021-2022 Legal framework: Section 44(2) bars furnishing of an annual return under Section 44(1) after the expiry of three years from the due date for furnishing that return; Rule 68 contemplates issuance of Form GSTR-3A within the temporal bounds in which the return can still be furnished. Precedent treatment: No precedents altering the statutory time-bar were cited by the Court. Interpretation and reasoning: The Court finds that notices requiring filing of GSTR-9 must, at best, be issued within the three-year window set by Section 44(2). The Court emphasises that the petitioner had the option to file the annual return voluntarily within the statutory three-year period; the petitioner did not do so. Because the dispute concerns the tax period 2021-2022 and the three-year period contemplated by Section 44(2) remained relevant, the Court reasons that the statutory liability for late fee continued to attach for non-filing during the period when filing was still legally permissible, and the petitioner's failure to avail itself of voluntary filing precludes relief based on absence of notice. Ratio vs. Obiter: Ratio - The three-year limitation in Section 44(2) governs the temporal scope for issuance of notices and for invoking late fee under Section 47(2); non-filing within that period sustains liability irrespective of procedural notice omissions. Obiter - Comments on the practical option for taxpayers to file voluntarily within the statutory period. Conclusion: The statutory three-year cut-off does not afford the petitioner relief; because the petitioner did not file within the permissible period, imposition of late fee for 2021-2022 under Section 47(2) is sustainable. Overall Conclusion The Court concludes that the challenge to the impugned order imposing late fee under Section 47(2) for failure to furnish the annual return under Section 44 is without merit. Procedural non-compliance with Rule 68 and Paragraph 4 of Circular No.129/2019 does not nullify statutory liability, and the statutory three-year period under Section 44(2) did not entitle the petitioner to relief where no return was filed within that period. The writ petition is dismissed.
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