Waiver of Interest or Penalty or both_Section 128A
INTRODUCTION: -
Section 128A, as proposed by the Finance Act,
2024 (No. 2), dated 16.08.2024, through Section 146, was notified via
Notification No. 17/2024 – Central Tax, dated 27.09.2024, and will be
applicable from 01.11.2024.
Section 128A provides a unique opportunity for
taxpayers to settle their tax liabilities without paying interest and penalties
under certain circumstances. This section focuses on cases where a taxpayer has
an outstanding tax liability for the period from July 1, 2017, to March 31,
2020. It allows such taxpayers to settle their dues with significant relief if
they meet the specific conditions outlined in this section.
PERIOD FOR WHICH RELAXATION IS PROVIDED: -
July 1, 2017, to March 31, 2020 (covering the
financial years 2017-18, 2018-19, and 2019-20).
ANALYSIS AND INTERPRETATION OF SECTION 128A: -
Key Points: -
Who is eligible? Taxpayers who have received tax notices or
orders under Section 73 (Non fraud Case) or Sections 107 (Appeal to 1st
appellate authority)/108 (Revisional authority's power) related to the period
from July 1, 2017, to March 31, 2020.
Main Benefits: If eligible taxpayers pay the full amount of
tax within the specified time notified by the government, they will be exempt
from paying interest and penalties on that amount.
THE
FOUR MAIN SCENARIOS COVERED UNDER SECTION 128A (1) AND PAYMENT DUE DATE: -
· Scenario 1: Taxpayers who have received a notice under
subsection (1) of Section 73 or a statement under subsection (3) of Section 73,
but no order under subsection (9) of Section 73 has been issued.
Due
Date: 31.03.2025 (Notification No.
21/2024-CT_08.10.2024).
· Scenario 2: Taxpayers who have received an order under
subsection (9) of Section 73, but no order under subsection (11) of Section 107
or subsection (1) of Section 108 has been passed.
Due
Date: 31.03.2025 (Notification No.
21/2024-CT_08.10.2024).
· Scenario 3: Taxpayers who have received an order under
subsection (11) of Section 107 or subsection (1) of Section 108, but no order
under subsection (1) of Section 113 has been passed.
Due
Date: 31.03.2025 (Notification No.
21/2024-CT_08.10.2024).
· Scenario 4 (First Proviso of Section 128A): If a notice has been issued under Section
74(1) (which deals with cases involving tax evasion or fraud), and an order is
issued or needs to be issued by the tax officer following the instructions
given by an Appellate Authority, Tribunal, or court (as per Section 75(2)),
then this notice or order will be treated the same as a notice or order
mentioned in Scenario 1 or Scenario 2.
Due
Date: Date ending on completion of six
months from the date of issuance of the order by the proper officer redetermining
tax under section 73 of the said Act. (Notification No. 21/2024-CT_08.10.2024).
CONDITIONS: -
The relief is available only if the taxpayer
pays the full tax liability on or before the date notified by the government,
based on the recommendations of the GST Council (54th Meeting of GST
council held on 09.09.2024 recommended 31.03.2025 as the last date on or before
which the payment of tax may be made by the registered person). All proceedings
related to the said notice, statement, or order will be deemed concluded,
subject to prescribed conditions.
SPECIFIC
ACTION OCCURRENCE: WHERE: -
· An application is filed under Section 107(3)
(appeal to the Appellate Authority by the authorized officer) or Section 112(3)
(appeal to the Appellate Tribunal by the authorized officer).
· A central tax officer files an appeal under
Section 117(1) (appeal to the High Court) or Section 118(1) (appeal to the
Supreme Court).
· Any proceedings are initiated under Section
108(1) (revisional authority's power).
And these actions are against an order
referred to in Scenario 2 or Scenario 3, or against the directions given by the
Appellate Authority, Appellate Tribunal, or court as mentioned in Scenario 4,
then:
The taxpayer must pay any additional tax
amount decided by the Appellate Authority, Tribunal, court, or Revisional
Authority within three months from the date of their order. This means that if,
after the appeal or proceedings, it is determined that the taxpayer owes more
tax, they must pay this additional amount within three months.
Only when the taxpayer pays this additional
amount within the given three months will the proceedings be considered
finalized or concluded under this section. This ensures that all dues are fully
paid before the case is considered fully settled.
NO REFUND CLAUSE: -
If a taxpayer has already paid interest and
penalties before this scheme, they will not be eligible for a refund.
EXCLUSIONS:
-
· This section does not apply if the amount
payable is due to an erroneous refund.
· It also does not apply to cases where an
appeal or writ petition filed by the taxpayer is pending before the Appellate
Authority, Appellate Tribunal, or a court and has not been withdrawn by the
taxpayer on or before the notified date.
FINALITY OF PROCEEDINGS: -
Once a taxpayer pays the specified amount
under this section, no further appeals under Section 107(1) or 112(1) against
the related orders will be permitted.
PROCEDURE (RULE
164): -
1. Application for Waiver of Interest/Penalty -
Notice or Statement (Section 128A(1)(a)) (Scenario 1 in our Case).
·
Eligible
person:
A person eligible for waiver of interest,
penalty, or both under clause (a) of sub-section (1) of section 128A.
·
Form to be
used:
FORM GST SPL-01 (to be filed electronically on
the common portal).
·
Details to
be provided:
¨ Details of the notice or statement (as
applicable).
¨ Details of payments made towards the tax
demanded via FORM GST DRC-03.
2. Application for Waiver of Interest/Penalty -
Orders (Section 128A(1)(b) & (c)) (Scenario 2 & 3 in our Case).
·
Eligible
person:
A person eligible for waiver of interest,
penalty, or both under clauses (b) and (c) of sub-section (1) of section 128A.
·
Form to be
used:
FORM GST SPL-02 (to be filed electronically on
the common portal).
·
Details to
be provided:
¨ Details of the order.
¨ Details of payments made towards the tax
demanded.
Payment Provisions for Tax Demanded.
· 1st Proviso: Payment of the tax demanded under the order
shall be made by crediting the amount in the Electronic Liability Register
against the debit entry created by the order.
· 2nd Proviso: If the tax demanded was already paid through
FORM GST DRC-03, the person must file an additional application in FORM GST
DRC-03A (as per Rule 142(2B)).
·
Purpose of
FORM GST DRC-03A:
¨ To credit the amount paid via DRC-03 in the
Electronic Liability Register against the debit entry for the said demand.
¨ This step must be completed before filing the
application in FORM GST SPL-02.
3. Demand of Tax – Partially Due to Erroneous
Refund and Partially for Other Reasons.
·
Scenario:
If a notice, statement, or order under
Section 128A (1) includes a tax demand that is:
§ Partly due to erroneous refund.
§ Partly due to other reasons.
·
Condition
for Filing Application:
§ The application (under sub-rule (1) or (2))
can be filed only after full payment of the tax demanded.
§ The payment must be made on or before the
notified date under Section 128A (1).
4. Demand of Tax – Partially for Periods Covered
and Not Covered under Section 128A (1).
·
Scenario:
If a notice, statement, or order under
Section 128A (1) includes a tax demand for:
§ Partly for the period covered under Section
128A (1).
§ Partly for another period not covered under
Section 128A (1).
·
Condition
for Filing Application:
§ The application (under sub-rule (1) or (2))
can be filed only after full payment of the tax demanded.
§ The payment must be made on or before the
notified date under Section 128A (1).
5. Amount Payable After Adjustments.
Payable
Amount:
The
amount payable under sub-rule (1) or (2) will be the remaining amount, after:
§ Deducting the amount that is not payable under
Section 16(5) or (6).
§ Calculating the remaining payable amount in
terms of the notice, statement, or order issued under Section 73 (as
applicable).
6. Time Limit for Filing Applications under
Sub-rule (1) or (2).
·
General Time
Limit:
o
The application
must be filed within three months from the notified date under Section 128A (1).
·
Extended
Time Limit for FORM GST SPL-02:
o
If the
application relates to cases under the first proviso to Section 128A (1) (i.e.,
redetermination by the proper officer under Section 73), the time limit is six
months from the communication date of the redetermined order.
7. Withdrawal of Appeal or Writ Petition for
Waiver Eligibility.
·
Condition
for Filing Application:
§ The application under sub-rule (1) or (2) must
be accompanied by documents proving the withdrawal of any appeal or writ
petition filed before:
o
Appellate
Authority
o
Tribunal
o
Court
·
If
Withdrawal Order is Pending:
§ If the withdrawal order from the concerned
authority is not issued by the time of filing the application, the applicant
must:
o
Upload the
withdrawal application/document
(submitted to the Appellate Authority, Tribunal, or Court) along with the main
application under sub-rule (1) or (2).
o
Upload the
withdrawal order on the common
portal within one month of the issuance of the said order by the concerned
authority.
8. Notice for Rejection of Application (FORM GST SPL-03).
·
When Issued:
o
If the proper
officer believes the application in FORM GST SPL-01 or SPL-02 is ineligible for
waiver of interest, penalty, or both under Section 128A.
·
Notice to
Applicant:
o
The officer must
issue a notice in FORM GST SPL-03 on the common portal.
·
Timeline for
Issuing Notice:
o
The notice must
be issued within THREE MONTHS from the date of receipt of the
application.
·
Opportunity
for Hearing:
o
The officer must
provide the applicant with an opportunity to be heard.
9. Reply to Notice by Applicant (FORM GST
SPL-04).
·
Timeline for
Reply:
o
The applicant
must file a reply to the notice in FORM GST SPL-04 on the common portal.
o
The reply must be
submitted within ONE MONTH from the date of Receipt of The Notice.
10. Order for Acceptance of Application (FORM GST
SPL-05).
·
When Issued:
o
If the proper
officer is satisfied that the applicant is ELIGIBLE for waiver of
interest, penalty, or both as per Section 128A.
·
Order Issued
in FORM GST SPL-05:
o
The officer shall
issue the acceptance order on the common portal.
o
The order will
conclude the proceedings under Section 128A.
11. Effect of Issuance of Order in FORM GST
SPL-05.
·
When Issued:
If the proper officer issues an order
in FORM GST SPL-05 under sub-rule (10), the following shall apply:
§ Cases related to FORM GST SPL-01
(Notice/Statement under Section 128A(1)(a)):
o
No need to issue
FORM GST DRC-07.
o
The summary of
order in FORM GST DRC-07 (as required under Rule 142(5)) will not be issued for
the said notice or statement.
§ Cases related to FORM GST SPL-02 (Orders under
Section 128A(1)(b) or (c)):
o Electronic Liability Register Part II:
Any liability created shall be modified
accordingly in Part II of the Electronic Liability Register.
12. Issuance of Rejection Order in FORM GST SPL-07.
·
When Issued:
§ If the proper officer is not satisfied with
the reply submitted by the applicant to the notice.
·
Rejection
Order:
§ The officer shall issue an order rejecting the
application in FORM GST SPL-07.
13. Timeline for Issuance of Order by the Proper Officer.
·
If Notice in
FORM GST SPL-03 is NOT Issued:
§ The proper officer must issue the order under
sub-rule (10) (FORM GST SPL-05) within THREE MONTHS from the date of receipt
of the application in FORM GST SPL-01 or SPL-02.
·
If Notice in
FORM GST SPL-03 is Issued:
§ The proper officer must issue the order under
sub-rule (10) or sub-rule (12) (approval or rejection) within:
o
THREE MONTHS from the date of receipt of the reply
from the applicant in FORM GST SPL-04.
o
FOUR MONTHS from the issuance date of the notice in
FORM GST SPL-03, if no reply is received from the applicant.
·
Explanation:
For applications under sub-rule (7)
where the applicant has filed for withdrawal of an appeal:
§ The time period between the filing of the
application under sub-rule (1) or (2) and the submission of the withdrawal
order will not be counted in calculating the time limits for above clause.
14. Deemed Approval if Order Not Issued on Time.
·
If the
proper officer does not issue an order within the time limits specified under
sub-rule (13).
§ The application in FORM GST SPL-01 or SPL-02
will be deemed to be approved.
§ The proceedings will be deemed to be
concluded.
15. Restoration of Original Appeal and Appellate
Authority Orders.
(a) Restoration of Original Appeal:
§ If no appeal is filed against the order in
FORM GST SPL-07 within the time specified in Section 107(1):
o
The original
appeal (if any) filed by the applicant against the order under Section
128A(1)(b) or (c) (Scenario 2 & 3 in our Case), which was withdrawn for
filing the application in FORM GST SPL-02, shall be restored.
(b) Filing Appeal Against Rejection of Waiver
Application:
§ If an appeal is filed against the order in
FORM GST SPL-07 for rejecting the waiver application:
(i) If the appellate authority
finds that the proper officer wrongly rejected the application:
o
The authority
shall pass an order in FORM GST SPL-06 on the common portal, accepting
the application and concluding the proceedings under Section 128A.
(ii) If the appellate authority
finds that the proper officer rightly rejected the application:
o
The original
appeal (if any) against the order under Section 128A(1)(b) or (c) (Scenario 2
& 3 in our Case), which was withdrawn, shall be restored.
o
The restoration
is subject to the applicant filing an undertaking electronically in FORM GST
SPL-08 within three months from the date of the order by the appellate
authority in FORM GST APL-04.
o
The undertaking
must state that the applicant has neither filed nor intends to file any appeal
against the appellate authority’s order.
16. Consequences of Non-Payment of Additional Tax
Liability.
·
If the
taxpayer is required to pay an additional amount of tax under the second
proviso to Section 128A (SPECIFIC ACTION OCCURRENCE in our case):
§ If the additional payment is not made within
the specified time limit:
o
Any waiver of
interest or penalty granted under the order in FORM GST SPL-05 or SPL-06 shall
become void.
17. Payment of Interest or Penalty Related to
Erroneous Refund.
·
If the taxpayer
is required to pay any interest or penalty regarding demands for:
§ Erroneous refund or
§ Demands pertaining to periods not mentioned in
Section 128A (1):
§ The applicant must pay the specified amounts
within THREE MONTHS from the date of issuance of the order in FORM
GST SPL-05 or SPL-06.
§ If the payment is not made within this period,
the waiver of interest or penalty granted under Section 128A in the respective
order will become void.
· Explanation:
§
For issuing
orders under these rules:
If the waiver application relates to a notice/statement under Section 128A(1)(a), the proper officer for issuance will be as per Section 73.
If the waiver application relates to an order under Section 128A(1)(b) or (c), the proper officer will be as referred to in Section 79 of the Act.
CONCLUSION: -
Section 128A provides a mechanism for
taxpayers to resolve their tax liabilities related to specific periods (from
July 1, 2017, to March 31, 2020) without incurring interest and penalties,
provided they adhere to the conditions outlined. It aims to ease the compliance
burden on taxpayers while ensuring that the government efficiently collects
outstanding taxes.
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