Sec 128A - Waiver of interest and Penalty

[THYAGARAJAN KALYANASUNDARAM]

Dear Experts,

One of my clients had received GST Order wherein the tax demanded was already paid while filing Annual Returns. We had gone for Appeal and it is pending for disposal.

Now, can we opt for Amnesty Scheme under section 128A, as the tax demand has been paid and seek waiver for interest and penalty?

When we tried filing SPL-02, the DRC-03 through which we paid is not reflecting as we have paid by giving reason as 'Annual Return'. In case we can opt for Sec 128A, how can we file Form SPL-02 in this scenario?

[Shilpi Jain]

You are eligible for the scheme if it is demand for period 2017-18 to 2019-20.

If due to the above reason you are not able to file SPL-02 pls write to the department regarding this and meet the jurisdictional officer. Take a dated acknowledgment for the letter you submit.

The order which was passed would have also appropriated the amount already paid. So this should make it easier for the officer to accept the applicability of the scheme.

[Asha Latha]

Yes, scheme is applicable as the tax amount has already been paid fully, which was clarified via SI. No. 1 of Circular No. 238/32/2024-GST dated 15-10-2024 that payment made would be considered as paid towards the amount payable, even payment was made before the issuance of notice/order.

However, there is a restriction in the portal for filing the application when payment is made under Annual Return category. A grievance can be raised regarding this. Once the portal is updated, we can file the application.

Otherwise, since the amount is already paid, it is better to get the appeal disposed by the Appellate Authority in our favour, so that interest and penalty demands would also get dropped, wherein, no further requirement for amnesty. 

For safeguard, SPL-02 can be filed after receipt of order from appellate authority.

AI Summary

Waiver of interest and penalty under Sec 128A: amnesty may apply where tax already paid; portal blocks SPL-02 filing. Applicability of the amnesty under Sec 128A depends on the period and on tax having been paid; payments recorded via annual returns are treated as payment for scheme purposes per Circular No. 238/32/2024-GST. Portal restrictions can prevent filing Form SPL-02 when payment is recorded under the Annual Return category; remedial steps include raising a grievance, writing to and meeting the jurisdictional officer with dated acknowledgement, or awaiting a favourable appellate order and filing SPL-02 thereafter.