GOODS & SERVICES TAX

Date 30th November 2024

CA Anuj Lohia

Topic – GST Interest & Penalty

Waiver Scheme
Introduction

• Based on the recommendations of the GST Council made in its 53rd

meeting, Section 128A has been inserted in the Central Goods and
Services Tax Act, 2017 (hereinafter referred to as ‘the CGST Act’) with
effect from 01.11.2024 to provide for waiver of interest or penalty or both,
relating to demands under section 73 of the CGST Act pertaining to
Financial Years 2017-18, 2018-19 and 2019-20, subject to certain
conditions.

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Important Notifications
• Subsequently, based on the recommendations of the GST Council made in its 54th meeting, Rule
164 has been inserted in Central Goods and Services Tax Rules, 2017 (hereinafter referred to as
‘the CGST Rules’) with effect from 01.11.2024 vide notification No.20/2024-Central tax dated
8th October 2024, providing for procedure and conditions for closure of proceedings under
section 128A of CGST Act.
• Further, vide notification No. 21/2024-Central tax dated 8th October 2024, 31.03.2025 has been
notified under sub-section (1) of section 128A of CGST Act as the date on or before which the
full payment of tax demanded in the notice/ statement/ order needs to be made by the
taxpayer in order to avail the benefit of waiver of interest or penalty or both under the said
section. Also, for cases where the application is made as per the first proviso to the sub-section (1)
of the section 128A of CGST Act, the date on or before which the full payment of tax demanded in
the order issued by the proper officer redetermining the tax under section 73 of CSGT Act needs to
be made by the taxpayer, has been notified as six months from the date of issuance of such order by
the proper officer redetermining the tax under section 73 of CGST Act.

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Section 128A(1)
• 128A. (1) Notwithstanding anything to the contrary contained in this Act, where any
amount of tax is payable by a person chargeable with tax in accordance with,––

(a) a notice issued under sub-section (1) of section 73 or a statement issued

under sub-section (3) of section 73, and where no order under sub-section (9)
of section 73 has been issued; or
• (b) an order passed under sub-section (9) of section 73, and where no order
under sub-section (11) of section 107 or sub-section (1) of section 108 has
been passed; or
• (c) an order passed under sub-section (11) of section 107 or sub-section (1) of
section 108, and where no order under sub-section (1) of section 113 has
been passed,

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• pertaining to the period from 1st July, 2017 to 31st March,
2020, or a part thereof, and the said person pays the full
amount of tax payable as per the notice or statement or the
order referred to in clause (a), clause (b) or clause (c), as the case
may be, on or before the date, as may be notified by the
Government on the recommendations of the Council, no interest
under section 50 and penalty under this Act, shall be payable
and all the proceedings in respect of the said notice or order or
statement, as the case may be, shall be deemed to be
concluded, subject to such conditions as may be prescribed:

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1st Proviso to Section 128A(1)
• Provided that where a notice has been issued under sub-
section (1) of section 74, and an order is passed or
required to be passed by the proper officer in pursuance of
the direction of the Appellate Authority or Appellate Tribunal
or a court in accordance with the provisions of sub-section (2)
of section 75, the said notice or order shall be considered to
be a notice or order, as the case may be, referred to in clause
(a) or clause (b) of this sub-section:

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2nd Proviso to Section 128A(1)
• Provided further that the conclusion of the proceedings under this sub-section,
in cases where an application is filed under sub-section (3) of section 107 or
under sub-section (3) of section 112 or an appeal is filed by an officer of
central tax under sub-section (1) of section 117 or under sub-section (1) of
section 118 or where any proceedings are initiated under sub-section (1) of
section 108, against an order referred to in clause (b) or clause (c) or against
the directions of the Appellate Authority or the Appellate Tribunal or the court
referred to in the first proviso, shall be subject to the condition that the said
person pays the additional amount of tax payable, if any, in
accordance with the order of the Appellate Authority or the Appellate
Tribunal or the court or the Revisional Authority, as the case may be,
within three months from the date of the said order:

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3rd Proviso to Section 128A(1)
• Provided also that where such interest and penalty has
already been paid, no refund of the same shall be available.

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Section 128A (2) & (3)
• (2) Nothing contained in sub-section (1) shall be applicable in
respect of any amount payable by the person on account of
erroneous refund.

(3) Nothing contained in sub-section (1) shall be applicable in

respect of cases where an appeal or writ petition filed by the said
person is pending before Appellate Authority or Appellate Tribunal
or a court, as the case may be, and has not been withdrawn by
the said person on or before the date notified under sub-
section (1)

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Section 128A (4)
• (4) Notwithstanding anything contained in this Act, where any
amount specified under sub-section (1) has been paid and the
proceedings are deemed to be concluded under the said sub-
section, no appeal under sub-section (1) of section 107 or sub-
section (1) of section 112 shall lie against an order referred to
in clause (b) or clause (c) of sub-section (1), as the case may
be.”

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Rule 164
• (1) Any person who is eligible for waiver of interest, or penalty, or both in respect of a notice or a
statement mentioned in clause (a) of sub-section (1) of section 128A, may file an application
electronically in FORM GST SPL-01 on the common portal, providing the details of the said notice or
the statement, as the case may be, along with the details of the payments made in FORM GST DRC-
03 towards the tax demanded

• (2) Any person who is eligible for waiver of interest, or penalty, or both, in respect of orders
mentioned in clauses (b) and (c) of sub-section (1) of section 128A, may file an application
electronically in FORM GST SPL 02 on the common portal, providing the details of the said order,
along with the details of the payments made towards the tax demanded:

• Provided that the payment towards such tax demanded shall be made only by crediting the amount
in the electronic liability register against the debit entry created by the said order:

• Provided further that if the payment towards such tax demanded has been made through FORM
GST DRC-03, an application in FORM GST DRC-03A, as prescribed in sub-rule (2B) of rule 142, shall
be filed by the said person for credit of the said amount in the Electronic Liability Register against
the debit entry created for the said demand, before filing the application in FORM GST SPL 02.

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Rule 164
• (3) Where the notice or statement or order mentioned in sub-section (1) of section 128A includes
demand of tax, partially on account of erroneous refund and partially for other reasons, an
application under sub-rule (1) or sub-rule (2) may be filed only after payment of the full amount of
tax demanded in the said notice or statement or order, on or before the date notified under the said
sub-section.

• (4) Where the notice or statement or order mentioned in sub-section (1) of section 128A includes
demand of tax, partially for the period mentioned in the said sub-section and partially for the period
other than that mentioned in the said sub-section, an application under sub-rule (1) or subrule (2)
may be filed only after payment of the full amount of tax demanded in the said notice or statement
or order, on or before the date notified under the said sub-section

• (5) The amount payable under sub-rule (1) or sub-rule (2) shall be the amount that remains
payable, after deducting the amount not payable in accordance with sub-section (5) or sub-section
(6) of section 16, from the amount payable in terms of the notice or statement or order under
section 73, as the case may be.

• (6) Any person who wishes to file an application under sub-rule (1) or sub-rule (2), may do so within
a period of three months from the date notified under sub-section (1) of section 128A:

• Provided that where an application in FORM GST SPL-02 is to be filed in cases referred to in the first
proviso to sub-section (1) of section 128A, the time
CA limit for filing the said application shall be six
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months from the date of communication of the order of the proper officer redetermining such tax
Rule 164
• (7) The application under sub-rule (1) or sub-rule (2) shall be accompanied by
documents evidencing withdrawal of appeal or writ petition, if any, filed before any
Appellate Authority, or Tribunal or Court, as the case may be, to establish that the
applicant is eligible for the waiver of interest or penalty or both, in terms of
section 128A:

• Provided that where the applicant has filed an application for withdrawal of an
appeal or writ petition filed before the Appellate Authority or Appellate Tribunal or
a court, as the case may be, but the order for withdrawal has not been issued by
the concerned authority till the date of filing of the application under sub-rule (1)
or sub-rule (2), the applicant shall upload the copy of such application or document
filed for withdrawal of the said appeal or writ petition along with the application
under sub-rule (1) or sub-rule (2), and shall upload the copy of the order for
withdrawal of the said appeal or writ petition on the common portal, within one
month of the issuance of the said order for withdrawal by the concerned authority.

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Rule 164
• (8) Where the proper officer is of the view that the application made in FORM GST SPL-01 or FORM
GST SPL-02 is liable to be rejected as not being eligible for waiver of interest, or penalty, or both, as
per section 128A, he shall issue a notice on the common portal to the applicant in FORM GST SPL-
03 within three months from the date of receipt of the said application and shall also give the
applicant an opportunity of being heard.

• (9) On receiving the notice under sub-rule (8), the applicant may file a reply to the said notice on
the common portal in FORM GST SPL-04, within a period of one month from the date of receipt of
the said notice.

• (10) If the proper officer is satisfied that the applicant is eligible for waiver of interest and penalty
as per section 128A, he shall issue an order in FORM GST SPL-05 on the common portal accepting
the said application and concluding the proceedings under section 128A.

• (11) In cases where the order in FORM GST SPL-05 is issued by the proper officer under sub-rule
(10).–

• (a) in respect of an application filed in FORM GST SPL-01 pertaining to a notice or statement
referred to in clause (a) of sub-section (1) of section 128A, the summary of order in FORM GST DRC-
07 as per sub-rule (5) of rule 142 shall not be required to be issued by the proper officer, in respect
of the said notice or statement;
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• (b) in respect of an application filed in FORM GST SPL-02 pertaining to an order referred to in clause
Rule 164
• (12) If the proper officer is not satisfied with the reply of the applicant, the proper officer shall issue
an order in FORM GST SPL-07 rejecting the said application.

• (13)

• (a) In cases where notice in FORM GST SPL-03 has not been issued, the proper officer shall issue the
order under sub-rule (10) within a period of three months from the date of receipt of the application
in FORM GST SPL-01 or FORM GST SPL-02, as the case may be.

• (b) In cases where notice in FORM GST SPL-03 has been issued, the proper officer shall issue the
order in sub-rule (10) or sub-rule (12) within a period of three months from the date of receipt of
reply of the applicant in FORM GST SPL-04, or within a period of four months from the date of
issuance of notice in FORM GST SPL-03 where no reply is received from the applicant.

• Explanation.– For the purposes of this sub-rule, in cases referred to in the proviso to sub-rule (7),
the time period from the date of filing of the application under sub-rule (1) or sub-rule (2) till the
date of submission of the order for withdrawal of the appeal or the writ, as the case may be, shall
not be included while calculating the time period under clause (a) or clause (b) of this sub-rule.

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Rule 164
• (14) If no order is issued by the proper officer within the time limit specified in sub-rule (13), then the application in
FORM GST SPL-01 or FORM GST SPL-02, as the case may be, shall be deemed to be approved and the proceedings
shall be deemed to be concluded

• (15)

• (a) In cases where no appeal is filed against the order in FORM GST SPL-07 within the time period specified in sub-
section (1) of section 107, the original appeal, if any, filed by the applicant against the order mentioned in clause
(b) or clause (c) of sub-section (1) of section 128A, and withdrawn for filing the application in FORM GST SPL-02 in
accordance with sub-section (3) of section 128A, shall be restored.

• (b) In cases where an appeal is filed against the order in FORM GST SPL-07 for rejection of application for waiver of
interest, or penalty, or both, if—

• (i) the appellate authority has held that the proper officer has wrongly rejected the application for waiver of interest,
or penalty, or both, in FORM GST SPL-07, the said appellate authority shall pass an order in FORM GST SPL-06 on
the common portal accepting the said application and concluding the proceedings under section 128A; or

• (ii) the appellate authority has held that the proper officer has rightly rejected the application for waiver of interest,
or penalty, or both, in FORM GST SPL-07, the original appeal, if any, filed by the applicant against the order
mentioned in clause (b) or clause (c) of sub-section (1) of section 128A, and withdrawn for filing the application in
FORM GST SPL-02 in accordance with sub-section (3) of section 128A, shall be restored, subject to condition that the
applicant files an undertaking electronically on the portal in FORM GST SPL-08, within a period of three months from
the date of issuance of the order by the appellate authority in FORM GST APL-04, that he has neither filed nor
CA ANUJ
intends to file any appeal against the said order of the Appellate LOHIA
Authority 16
Rule 164
• (16) In cases where the taxpayer is required to pay an additional amount of tax liability as per the second
proviso to sub-section (1) of section 128A, and such additional payment is not made within the time limit
specified in the said proviso, the waiver of interest, or penalty, or both, under the said section as per the
order issued in FORM GST SPL-05 or FORM GST SPL-06, if any, shall become void.

• (17) In cases where the taxpayer is required to pay any amount of interest, or penalty, or both, in respect
of any demand pertaining to erroneous refund or on account of demand pertaining to the period other
than the period mentioned in sub-section (1) of section 128A, and the details of such amount have been
mentioned in FORM GST SPL-05 or FORM GST SPL-06, the applicant shall pay the said amount of interest,
or penalty, or both, within a period of three months from the date of issuance of the order in FORM GST
SPL-05 or FORM GST SPL-06, as the case may be, and where the said amount is not paid within the said
time period, the waiver of interest, or penalty, or both, under section 128A as per the order issued in FORM
GST SPL-05 or FORM GST SPL-06, shall become void.

• Explanation.– For the purposes of this rule, the proper officer for issuance of order under this rule,–

• (a) in cases where the application for waiver of interest, or penalty, or both is made with respect to a
notice or statement mentioned in clause (a) of sub-section (1) of section 128A, shall be the proper officer
for issuance of order as per section 73; and

• (b) in cases where the application for waiver of interest, or penalty, or both, is made with respect to an
order mentioned in clause (b) or clause (c) of sub-section (1) of section 128A, shall be the proper officer
referred to in section 79 of the Act.”.
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CA ANUJ LOHIA 18
Procedure
• In cases referred to in clause (a) of sub-section (1) of Section
128A where a notice/ statement under Section 73 has been
issued demanding tax interalia pertaining to the period from
July 2017 to March 2020, for which no order has been
issued under section 73, an application in FORM GST SPL-
01, may be filed electronically on the common portal, by the
taxpayer.
Note :-
Form GST SPL-01 and Form GST SPL-02 are Under
Development; Would Be Available from January 2025

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Procedure
• In cases referred to in clause (b) of sub-section (1) of Section
128A, where an order has been issued under Section 73
demanding tax inter alia pertaining to the period from July
2017 to March 2020, for which no order has been issued
under section 107 or section 108, an application in FORM
GST SPL-02, may be filed electronically on the common
portal, by the taxpayer.
• Similarly, in cases referred to in clause (c) of sub-section (1) of
Section 128A, where an order has been issued under Section
107 or Section 108, but no order has been issued under
section 113, an application in FORM GST SPL-02, may
be filed electronically on the common portal, by the taxpayer.
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Procedure
• The application in FORM GST SPL-01 or FORM GST SPL-02, as the case may
be, shall be filed within a period of three months from the date
notified under section 128A (1), i.e., within three months from
31.03.2025.
• However, as per the first proviso to sub-section (1) of Section 128A, where a
notice has been issued under section 74, and the Appellate Authority or
Appellate Tribunal or a court directs the proper officer to redetermine the tax
as if the demand notice is issued under section 73, in accordance with the
provisions of section 75(2), then same is covered under clause (b) of sub-
section (1).
• Therefore, as mentioned in proviso to sub-rule (6) of Rule 164, in
such cases, an application in FORM GST SPL-02, can be filed within
six months from the date of communication of order of the proper
officer redetermining the amount of tax to be paid under section 73.

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Procedure
• Where an appeal under Section 107 or section 112 has been filed by the taxpayer,
against an order referred to in clause (b) or clause (c) of sub-section (1) of section 128A,
or where a writ petition has been filed by the taxpayer against a notice/ statement/ order
referred to in clause (a) or (b) or clause (c) of sub-section (1) of section 128A, the
taxpayer is required to withdraw the same before filing an application for waiver
of interest or penalty or both, and enclose the order of withdrawal of such appeal/
writ petition in along with the application filed in FORM GST SPL-01 or FORM GST SPL-02,
as the case may be.
• However, in cases where the applicant has filed the application or any other document,
for withdrawal of an appeal or writ petition before Appellate Authority or Appellate
Tribunal or a court, as the case may be, but the order for withdrawal has not been issued
by the concerned authority till the date of filing of the application in FORM GST SPL-01 or
FORM GST SPL-02, he is required to upload the copy of such application or the document
filed for withdrawal of the said appeal or writ petition along with the said application in
FORM GST SPL-01 or FORM GST SPL-02. It is to be mentioned that he is required to
upload the final order for withdrawal of the said appeal or writ petition on the common
portal, within one month of the issuance of the said order for withdrawal by the
concerned authority.
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Procedure
• It may be noted that, in case the taxpayer has been issued
multiple notices/ statements/ orders pertaining to demands
under section 73, for period from July 2017 to March 2020, he
is required to file a separate application in FORM GST SPL-01
or FORM GST SPL-02, as the case may be, in respect of each
of the concerned notice/ statement/ order.

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Payment of Taxes
• With respect to a notice or statement referred to in clause (a)
of sub-section (1) of Section 128A, i.e., a notice or statement
that is yet to be adjudicated, the payment towards the tax
demanded in the said notice shall be made by the
taxpayer through FORM GST DRC-03.

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Payment of Taxes
• With respect to an order referred to in clause (b) and clause (c) of sub-section (1) of
Section 128A, the payment towards such tax demanded shall be made by the taxpayer,
only by the making the payment against the debit entry created in the Part II of the
Electronic Liability Register (ELR) by the demand order.
• In this regard, the procedure mentioned in para 4 of Circular No. 224/18/2024 -GST
dated 11th July 2024 may be referred to.
• However, in cases where the payment towards tax demanded in the demand order has
already been made through FORM GST DRC-03, the procedure prescribed in rule 142(2B)
may be followed.
• In such cases, the taxpayer shall be required to file an application in FORM GST DRC-
03A as prescribed in the said rule, in order to adjust the amount already paid
vide the FORM GST DRC-03, towards the demand created in the ELR-Part II,
before filing the application for waiver under Section 128A in FORM GST SPL-02.
• For the purposes of determining the date of payment of full amount of tax, the date on
which the amount has been paid through FORM GST DRC-03 may be considered and not
the date on which the said amount has been adjusted using FORM GST DRC-03A

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Form DRC03A
• Q- What is Form GST DRC-03A?
• A- Form GST DRC 03A has been introduced in the GST portal to adjust payments
made through Form GST DRC 03 against any outstanding demand in electronic
liability register.
• Q- Who can file DRC-03A?
• A- Taxpayers against whom demand is raised in Form GST DRC 07/DRC 08/MOV
9/MOV 11/APL 04 and for which the payment has been done through Form GST
DRC-03 under ‘Voluntary’ or ‘Others’ categories can file Form GST DRC-03A.
• Q- Which demand orders can be adjusted through Form GST DRC-03A
filing?
• A- Any outstanding demand order (DRC-07/DRC 08/MOV 09/MOV 11/APL 04)
which has not yet been completely paid can be adjusted through Form DRC-03 A
filing.
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Form DRC03A
• Q- What details do taxpayers need to enter while filing Form GST DRC03A?
• A- Taxpayers need to enter the ARN of Form GST DRC-03 and the demand order number is to
be selected using a drop-down. The details of the demand order and the payment done
through FORM GST DRC-03 will be displayed.
• Q- Can a taxpayer adjust the amount paid in Form GST DRC 03 partially against a
demand using Form GST DRC 03A?
• A- Yes, a taxpayer can adjust amount paid in Form GST DRC-03 partially against a single
demand order or multiple demand orders. The taxpayer has to fill the tables available in Form
GST DRC 03A accordingly.
• Q- Can a taxpayer use multiple Form GST DRC-03s to adjust a single demand and
vice-versa?
• A- Yes, a taxpayer can adjust multiple Form GST DRC-03s against a single demand order & a
single Form GST DRC-03 can also be used for adjustment against multiple demand orders.
Note – The taxpayer has to file separate DRC-03A for each DRC-03 if multiple DRC-03
are to be adjusted against a single demand order.

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Payment of Taxes
• Such payment shall be made on or before the date
notified under section 128A (1), i.e., on or before
31.03.2025. Where applications are filed in respect of cases
referred to in the first proviso to sub-section (1) of section
128A, then the applicants shall be required to make the
payment on or before the date notified under section 128A (1)
specifically for those cases, i.e., within six months of the
communication of the order of the proper officer
redetermining the amount of tax to be paid under
section 73.

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Payment of Taxes
• In cases where the amount of tax payable as per the notice/ statement/ order
includes the amount that was demanded due to contravention of provisions of
sub-section (4) of section 16, which is however not payable anymore due
to the retrospective insertion of sub-section (5) and sub-section (6) to section
16, the full amount of tax payable as per the notice/ statement/ order as
mentioned in sub-section (1) of section 128A for eligibility of waiver of interest
or penalty or both shall be calculated after deducting the amount, which is
not payable anymore as per sub-sections (5) or sub-section (6) of
section 16, as per sub-rule (5) of Rule 164. In this regard, it is also to be
mentioned that, where the taxpayer is deducting the amount of input tax credit
which was denied on account of contravention of sub-section (4) of section 16,
but which is now available as per retrospectively inserted provisions of sub-
section (5) or sub-section (6) of section 16 of the CGST Act, he is not required
to file an application for rectification for the same in terms of the special
procedure notified under section 148 vide notification No. 22/2024- Central tax
dated 8th October 2024.

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Payment of Taxes
• It is also clarified that while calculating the amount deductible on
account of not being payable in accordance with sub-section (5) or
sub-section (6) of Section 16, from the amount payable in terms of
the notice or statement or order under section 73, as the case may
be, taxpayer is required to ensure that such amount is deducted
only where ITC has been denied solely on account of contravention
of Section 16(4) of the CGST Act and not on any other grounds. The
tax officer scrutinising such applications is also required to
verify that the said amount that has been deducted by the
taxpayer as not payable anymore on account of
retrospective insertion of sub-section (5) and sub-section
(6) to section 16, was initially denied solely deducted on the
basis of contravention of sub-section (4) of section 16, and
not on any other grounds.
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Payment of Taxes
• It is further mentioned that, in cases referred to in sub-rule (3)
and sub-rule (4) of rule 164, the applicant can file the
application for waiver of interest or penalty or both under
section 128A, in respect of a notice/ statement/ order
mentioned in sub-section (1) of section 128A, only after
payment of full amount of tax demanded in the said notice/
statement/ order, including on account of demand
pertaining to erroneous refund, if any, and also on
account of demand pertaining to the period other than
the period mentioned in sub-section (1) of section
128A, if any, in the said notice/ statement/ order.

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Processing of Application
• The proper officer for processing the application for waiver of interest or
penalty or both under Section 128A, would be the proper officer to issue the
order under section 73, in case the application is filed in FORM GST SPL-01,
and would be the proper officer for recovery under Section 79, in case the
application is filed in FORM GST SPL-02.
• The proper officer on receipt of the application in FORM GST SPL-01 or FORM
GST SPL-02, shall examine the said application. If, on examination, he finds
that the said application is liable to be rejected, he shall issue a notice to the
applicant, within three months from the date of receipt of the said
application, in FORM GST SPL-03 on the common portal. The proper
officer shall also give the applicant an opportunity of personal hearing.
• On receipt of the notice in FORM GST SPL-03, the applicant may file his
reply in FORM GST SPL-04, electronically on the common portal,
within a period of one month from the date of receipt of the notice.

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Processing of Application
• The proper officer shall issue an order in FORM GST SPL-05,
accepting the said application, if he is satisfied that the
applicant is eligible for waiver of interest or penalty or both
under Section 128A. However, if the proper officer, based on
the application and the reply in FORM GST SPL-04 received
from the taxpayer, is of the view that the applicant is not
eligible for waiver of interest or penalty or both under Section
128A, he shall issue an order in FORM GST SPL-07,
rejecting the said application.

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Processing of Application
• The order in FORM GST SPL-05 or FORM GST SPL-07 shall be required to be issued within the time period
prescribed in sub-rule (13) of rule 164. In terms of sub-rule (14) of rule 164, in cases where no order is
issued within the time limit prescribed in sub-rule (13) of rule 164, the application filed in FORM
GST SPL-01 or FORM GST SPL -02, as the case may be, shall be deemed to be approved, and the
order in FORM GST SPL-05 approving the said application shall be made available on the common
portal.
• In cases where an application for waiver of interest or penalty or both was filed in FORM GST SPL-01 and an
order approving the said application is issued by the proper officer in FORM GST SPL-05, then a summary of
order in FORM GST DRC-07 need not be issued on the common portal. However, in cases where an order in
FORM GST SPL-05 or in FORM GST SPL-06, as the case may be, has been issued approving an application filed
in FORM GST SPL-02, the liability earlier created in the ELR – Part II by the demand order or the
appellate order, as the case may be, shall stand modified accordingly.
• Note- Time limit to issue SPL 05 / SPL 07
• (a) In cases where notice in FORM GST SPL-03 has not been issued, the proper officer shall issue the order under sub-rule (10) within a period of
three months from the date of receipt of the application in FORM GST SPL-01 or FORM GST SPL-02, as the case may be.

• (b) In cases where notice in FORM GST SPL-03 has been issued, the proper officer shall issue the order in sub-rule (10) or sub-rule (12) within a period
of three months from the date of receipt of reply of the applicant in FORM GST SPL-04, or within a period of four months from the date of issuance of
notice in FORM GST SPL-03 where no reply is received from the applicant.

• Explanation.– For the purposes of this sub-rule, in cases referred to in the proviso to sub-rule (7), the time period from the date of filing of the
application under sub-rule (1) or sub-rule (2) till the date of submission of the order for withdrawal of the appeal or the writ, as the case may be, shall
not be included while calculating the time period under clause (a) or clause (b) of this sub-rule.

CA ANUJ LOHIA 35
Processing of Application
• It is also to be mentioned that as per the second proviso to sub-section
(1) of Section 128A, the conclusion of proceedings against a demand
notice/ statement/ order under this section and further issuance of such
conclusion order in FORM GST SPL-05 or in FORM GST SPL-06, as the
case may be, in cases where the department had filed an application/
initiated revisional proceedings against the said demand notice/
statement/ order, is conditional upon the payment of additional tax
payable, if any, as determined by the Appellate Authority or the
Appellate Tribunal or the court or the Revisional Authority, as the case
may be, within three months of issuance of such order. In case, such
additional tax is not paid within the specified time limit, then
as per sub-rule (16) of Rule 164, the waiver of interest or
penalty or both provided under section 128A as per the order
issued in FORM GST SPL-05 or FORM GST SPL-06, as the case
may be, shall become void.
CA ANUJ LOHIA 36
Processing of Application
• Further, while processing the said application, the proper officer shall
ensure that the applicant has paid the amount of tax demanded in the
notice/ statement/ order referred in sub-section (1) of section 128A
(other than the amount not payable anymore due to the retrospective
insertion of sub-section (5) and sub-section (6) to section 16, as referred
in para 3.2.4), including the amount of tax demand pertaining to
erroneous refund, if any, and also on account of demand
pertaining to the period other than the period mentioned in sub-
section (1) of section 128A, if any, in the said notice/ statement/
order. Further, the proper officer shall also keep in consideration
that waiver of interest and penalty under section 128A is
available only in respect of demand pertaining to the period
mentioned in sub-section (1) of section 128A, and the demand
on issues other than on account of erroneous refund.

CA ANUJ LOHIA 37
Processing of Application
• Where it is found that any amount of interest and penalty is payable by the applicant
on account of some demand pertaining to the period other than the period mentioned
in sub-section (1) of section 128A or pertaining to demand of erroneous refund, the
detail of the same shall be mentioned in column no. 19 and column no. 20 of
FORM GST SPL-05 or FORM GST SPL-06, as the case may be. Further, in such cases,
an opportunity of personal hearing may be granted to the applicant, before issuance
of order in FORM GST SPL-05 or FORM GST SPL-06.
• In cases referred in above para, the applicant is required to pay the amount
of interest or penalty or both, detailed in column no. 19 and column no. 20
of FORM GST SPL-05 or FORM GST SPL-06, within a period of three months
from the date of issuance of the said order in FORM GST SPL-05 or FORM
GST SPL-06, as the case may be. In case where the said amount is not paid
within the period of three months from the date of issuance of the said
order in FORM GST SPL-05 or FORM GST SPL-06, as the case may be, the
waiver of interest or penalty or both under section 128A as per the order
issued in FORM GST SPL-05 or FORM GST SPL-06, shall become void, as per
sub-rule (17) of rule 164.
CA ANUJ LOHIA 38
Appeal against the orders issued
under Rule 164:
• No appeal shall lie under section 107, against an order issued in FORM GST
SPL-05 concluding the proceedings under section 128A. The order issued in
FORM GST SPL-07, rejecting the application for waiver, shall be, however,
appealable in accordance with sub-section (1) of section 107 within the
time limit specified therein, by filing an application in FORM GST APL-01.
• In such cases, normally, no pre-deposit may be required to be paid by the
taxpayer for filing the said appeal, as the said amount may already have
been paid as a part of payment of tax dues involved in the demand notice/
statement / order before filing an application in FORM GST SPL-01 or FORM
GST SPL-02. However, in cases where no amount of tax dues has been
paid or amount of tax dues paid is less than the requisite amount for pre-
deposit for filing appeal as per sub-section (6) of section 107, the
remaining amount of pre-deposit will be required to be paid for filing the
said appeal.

CA ANUJ LOHIA 39
Appeal against the orders issued
under Rule 164:
• It is also important to note that the subject matter of the
appeal will only be regarding the applicability of waiver of
interest or penalty or both under Section 128A and not on the
merits of the original notice/ statement/ order.
• It is to be mentioned that, in cases where an appeal has been
filed by the applicant against the order in FORM GST SPL-07,
and the appellate authority holds that the proper officer has
wrongly rejected the application, thereby allowing the
applicant the benefit of the waiver of interest or penalty or
both, the said appellate authority shall pass an order in FORM
GST SPL-06. This form shall accordingly modify the liability
created, if any, in the ELR-Part II
CA ANUJ LOHIA 40
Appeal against the orders issued
under Rule 164:
• Where appeal had been withdrawn before filing an application in FORM GST SPL-02, for
availing the waiver of interest or penalty or both under Section 128A, but the application for
waiver is rejected by the proper officer by issuance of order in FORM GST SPL-07,
• (a) in cases, where the taxpayer prefers an appeal against the said rejection order, and the
appellate authority holds that the proper officer has righty rejected the said application
made in FORM GST SPL-02, and issues an order in FORM GST APL-04, then the original
appeal filed by the applicant shall be restored, subject to condition that the applicant files
an undertaking electronically on the portal in FORM GST SPL-08, that he has neither filed
nor intends to file any appeal against such order of the Appellate Authority.
• (b) in cases, where the taxpayer prefers an appeal against the said rejection order, and the
appellate authority holds that the proper officer has wrongly rejected the said application
made in FORM GST SPL-02, and issues an order in FORM GST SPL-06, thereby holding that
the appellant is eligible for waiver of interest or penalty or both, no appeal shall lie against
the said order issued in FORM GST SPL-06.
• (c) in case, where the taxpayer does not prefer an appeal within the time period mentioned
in sub-section (1) of section 107 against the said rejection order, then the original appeal
filed by the applicant shall be restored.

CA ANUJ LOHIA 41
Sl No Issues Clarification
1 Whether the benefit In this regard, it is to be mentioned that all such amount paid towards
provided under Section the said demand upto the date notified under sub-section (1) of
128A will be applicable to section 128A, irrespective of whether the said payment has been
taxpayers who have paid done before Section 128A comes into effect, or after that, and
the tax component in full irrespective of whether such payment was made before the issuance
before the date on which the of the demand notice or demand order, or after that, shall be
said section has come into considered as paid towards the amount payable in sub-section (1) of
effect? Section 128A, as long as the said amount has been paid upto the date
notified under sub-section (1) of section 128A and was intended to be
paid towards the said demand.

2 Whether amount recovered Yes.

by the tax officers as tax
due from any other person The said amount recovered by the tax officers as tax due from any
on behalf of the taxpayer, other person on behalf of the taxpayer against a demand, shall also
against a particular demand be considered as the tax paid towards the said demand, for the
can be considered as tax purpose of section 128A provided the same has been recovered on or
paid towards the same for
before the date notified under sub-section (1) of section 128A.
the purpose of Section
128A?

CA ANUJ LOHIA 42
Sl No Issues Clarification
3 Whether the amount No.
recovered by the tax officers
as interest or penalty or It is mentioned that as per the third proviso to sub-section (1) of
both, pertaining to demand section 128A, no refund of such amount of interest or penalty or both,
under Section 73 pertaining is available.
to Financial Years 2017-18,
2018-19 and 2019-20, can Accordingly, any amount paid by the taxpayer or recovered by the tax
be adjusted against the tax officers, as interest or penalty cannot be adjusted towards the
amount payable towards the amount payable as tax.
demand made under Section
73 pertaining to the said
financial years?

4 Whether the benefit Where the tax due has already been paid and the notice or demand
provided under Section orders under Section 73 only pertains to interest and/or penalty
128A will be applicable in involved, the same shall be considered for availing the benefit of
cases, where the tax due section 128A.
has already been paid and
the notice or demand orders However, the benefit of waiver of interest and penalty shall not be
under Section 73 only applicable in the cases where the interest has been demanded on
pertains to interest and/or account of delayed filing of returns, or delayed reporting of any
penalty involved? supply in the return, as such interest is related to demand of interest
on self-assessed liability and does not pertain to any demand of tax
dues and is directly recoverable under sub-section (12) of section 75
CA ANUJ LOHIA 43
Sl No Issues Clarification
5 Whether the benefit under No.
Section 128A is available, if
the taxpayer intends to avail Section 128A (1) clearly provides that the waiver of interest or
partial waiver of interest or penalty or both is only applicable when the full amount of tax
penalty or both, on certain demanded in the notice/ statement/ order is paid.
issues, by making part
payment of the amount
demanded in the notice/
statement/ order, as the
case may be, and opts to
litigate for the remaining
issues?

CA ANUJ LOHIA 44
Sl. No Issues Clarification
6 Where the notice/order The taxpayer is eligible to apply for waiver of interest or penalty or
involves multiple periods, both, in such cases where the demand notice/ order spans tax periods
ranging from the period for covered under Section 128A and those not covered under the said
which waiver provided in section.
Section 128A is applicable, However, as per sub-rule (4) of Rule 164, the taxpayer shall be
and includes some other tax required to pay the full amount of tax demanded in the notice/
periods for which such statement / order, as the case may be, to avail the benefit of waiver
waiver is not applicable, of interest or penalty or both under Section 128A.
whether the benefit of Further, though the amount of tax demanded shall be required to be
waiver of interest or penalty paid as per the notice/ statement / order, as the case may be, for
or both under Section 128A whole of the period covered under the said notice/ statement / order,
can be availed for the period but the waiver of interest or penalty or both under section 128A shall
covered under section only be applicable for the period specified in section 128A, and not for
128A? the period not covered under the said section.
On payment of the full amount demanded in the notice/ statement/
If so, what is the tax amount order, if the proper officer finds that the applicant is eligible for
payable for claiming waiver waiver of interest or penalty or both for tax periods covered under
under Section 128A? Section 128A, he will reduce the liability to that extent in his order in
FORM GST SPL-05, and the remaining liability of interest or penalty or
both for tax periods not covered under Section 128A, remains payable
by the taxpayer.
The said amount shall be required to be paid by the applicant within
three months from the date of issuance of order in FORM GST SPL-05
or FORM GST SPL-06, as the case may be. If the said amount is not
paid within the time limit as mentioned above, the order in FORM GST
SPL-05 or FORM GST SPL-06, as the case may be, the waiver of
interest or penalty or both under section 128A as per the order issued
in FORM GST SPL-05 orLOHIA
CA ANUJ FORM GST SPL-06, shall become void, 45 as per
sub-rule (17) of rule 164.
Sl No Issues Clarification
7 Where the notice/ statement/ Yes.
order issued under Section 73 However, as per sub-rule (3) of Rule 164, the taxpayer shall be required to pay the
involves multiple issues and one
full amount of tax demanded in the notice/ statement / order, as the case may be,
of them is regarding demand ofincluding on account of demand of erroneous refund, to avail the benefit of waiver
erroneous refund, whether an of interest or penalty or both under Section 128A.
application can be filed for Further, in such cases, the waiver of interest or penalty or both under section 128A
waiver of interest or penalty or
shall only be available in respect of tax demand other than that pertaining to
both under Section 128A? demand of erroneous refund.
On payment of the full amount demanded in the notice/ statement/ order, if the
If so, what is the tax amount proper officer finds that the applicant is eligible for waiver of interest or penalty or
payable for claiming waiver both for tax periods covered under Section 128A in respect of tax demand other
under Section 128A? than that pertaining to demand of erroneous refund, he will reduce the liability to
that extent in his order in FORM GST SPL-05, and the remaining liability of
interest or penalty or both, that corresponds to demand of erroneous refund,
remains payable by the applicant.
The said amount shall be required to be paid by the applicant within three months
from the date of issuance of order in FORM GST SPL-05 or FORM GST SPL-06,
as the case may be. If the said amount is not paid within the time limit as
mentioned above, the order in FORM GST SPL-05 or FORM GST SPL-06, as the
case may be, the waiver of interest or penalty or both under section 128A as per
the order issued in FORM GST SPL-05 or FORM GST SPL-06, shall become
void, as per sub-rule (17) of rule 164.

CA ANUJ LOHIA 46
Sl No Issues Clarification
8 In cases where department has Yes, as per the second proviso to section 128A, the conclusion of proceedings in
filed an appeal against the order such cases is subject to the condition that the said person pays the additional
mentioned in clause (b) or clause amount of tax payable, if any, in accordance with the order of the Appellate
(c) of sub-section (1) of section Authority or the Appellate Tribunal or the court or the Revisional Authority, as the
128A and the Appellate Authority case may be, within three months from the date of the said order.
or the Appellate Tribunal or the
court or the Revisional Authority, Accordingly, it becomes clear that even in cases where an order in FORM GST
has issued an order enhancing SPL-05 or in FORM GST SPL-06 has been issued the conclusion of the said
the tax liability, and in the proceedings will be subject to the condition that the taxpayer pays the
meanwhile the proper officer additional tax amount as determined by the Appellate Authority or the
has issued an order in FORM Appellate Tribunal or the court or the Revisional Authority by an order
GST SPL-05 under section issued in the matter of appeal filed by the department, within a period of
128A, and the taxpayer has not three months from the date of the such order enhancing the tax liability.
paid the said additional amount
of tax liability within the In case such additional payment is not done within a period of three months from
specified time limit, what will the date of the said order, then as per sub-rule (16) of Rule 164, the waiver of
be the status of the conclusion interest or penalty or both under section 128A as per the order issued in
of proceedings under Section FORM GST SPL-05 shall become void.
128A?

CA ANUJ LOHIA 47
Sl No Issues Clarification
9 Sub-section (3) of section 128A Yes, in such cases also the applicant will be required to withdraw the said special
refers to only appeal or writ leave petition and file an application in FORM GST SPL-01 or FORM GST SPL-
petition. 02, as the case may be, along with proof of withdrawal of SLP or the copy of the
In this regard, whether matters application or any other document filed for withdrawal of SLP, where the order for
where SLP filed by the applicant withdrawal of SLP has not been issued at the time of filing application in FORM
is pending before the Supreme GST SPL-01 or FORM GST SPL-02. In such cases, the procedure mentioned in
Court, what is the procedure to be para 3.1.6 may be followed.
followed by the taxpayer to avail
the waiver of interest or penalty
or both?

CA ANUJ LOHIA 48
Sl No Issues Clarification
10 Whether the benefit provided Yes.
under Section 128A will be
available for matters involving On joint reading of section 20 of the Integrated Goods and Services Tax Act, 2017
IGST and Compensation Cess? and section 11 of GST (Compensation to States) Act, 2017 along with section
128A of CGST Act, it becomes clear that the benefit provided under Section 128A
of CGST Act will be available for matters involving IGST and compensation cess
as well.

In this regard, it is mentioned that in such cases, full payment of tax means
payment of CGST, SGST, IGST and compensation cess demanded in the notice/
statement/ order, as the case may be

11 Whether Section 128A covers The transitional credit is considered to be availed on the date on which the said
cases involving demand of credit amount is credited in the Electronic Credit Ledger.
irregularly availed transition On reading Rule 121 read with sub-rule (3) of rule 117, it is clear that any demand
credit? in respect of transitional credit wrongly availed, whether wholly or partly can be
made under section 73 or, as the case may be, section 74.
Therefore, it is mentioned that if the amount of transitional credit has been availed
in the period covered under Section 128A and notice for demand of wrongly
availed credit is issued under section 73, the same is covered under Section 128A.

CA ANUJ LOHIA 49
Sl Issues Clarification
No
12 Whether Section 128A will cover It is clarified that any penalty, including penalties under section 73, section 122,
waiver of penalties under other section 125 etc, demanded under the demand notice/ statement/ order issued under
provisions, late fee, redemption fine section 73, is covered under the waiver provided under Section 128A.
etc? However, late fee, redemption fine etc are not covered under the waiver
provided under Section 128A.

13 Whether payment to avail waiver Yes.

under Section 128A can be made by
utilizing ITC? The payment of tax required to be made for eligibility for waiver under section
128A is the amount of tax demanded in the notice/ statement/ order. Therefore, it
can be paid either by debiting from electronic cash ledger or by utilising the Input
Tax Credit (ITC), by debiting the electronic credit ledger, or partly from both.

However, where the demand is in respect of any amount of tax to be paid by the
recipient under Reverse Charge Mechanism or by the Electronic Commerce
Operator under section 9(5), then the said amount shall be required to be paid by
debiting the electronic cash ledger only and not through the electronic credit
ledger. Further, where the amount has to be paid for demand of erroneous refund,
the demand in respect of erroneous refund paid in cash is required to be paid only
by debiting the electronic cash ledger only and not through the electronic credit
ledger.
CA ANUJ LOHIA 50
Sl Issues Clarification
No
14 Whether the benefit of waiver under No.
Section 128A be availed qua import In such cases, demand is not issued under section 73 of the CGST Act, but is
IGST payable under the Customs Act, issued under the provisions of Customs Act, 1962 and therefore, such cases are not
1962? covered under waiver of interest or penalty or both under section 128A.

CA ANUJ LOHIA 51
Sl Issues Clarification
No
15 With retrospective insertion of Sub-rule (5) of rule 164 mentions that the amount payable in order to avail the benefit
sub-sections (5) and (6) to under section 128A, shall be calculated after deducting the amount not payable in
Section 16 of the CGST Act, accordance with sub-section (5) or sub-section (6) of Section 16, from the amount
the tax demanded in notice/ payable in terms of the notice or statement or order under section 73, as the case may be.
statement/ order reduces. Therefore, the applicant is required to pay only the amount that is payable, calculated
after deducting the amount not payable in accordance with sub-section (5) or sub-section
Whether the entire tax amount (6) of Section 16, from the amount payable in terms of the notice or statement or order
demanded in the notice/ under section 73, as the case may be, before submitting the application. While
statement/ order has to be paid calculating the amount deductible on account of not being payable in accordance with
in such cases, to avail the sub-section (5) or sub-section (6) of Section 16, from the amount payable in terms of the
benefit under section 128A? notice or statement or order under section 73, as the case may be, taxpayer is required to
ensure that such amount is deducted only where ITC has been denied solely on account
of contravention of Section 16(4) of the CGST Act and not on any other grounds.
He is also advised to provide a breakup of the amount not payable by him anymore,
as per sub-sections (5) and (6) of section 16, in FORM GST SPL-01 or FORM GST
SPL-02, as the case may be, to enable the officer to verify the payment easily.
It is also re-iterated that where the taxpayer is deducting the amount of ITC which
was denied on account of contravention of sub-section (4) of section 16 of the CGST
Act, but which is now available, as per retrospectively inserted provisions of sub-
section (5) or sub-section (6) of section 16 of the CGST Act, he is not required to file
application for rectification in respect of the same as per special procedure notified
under Section 148 vide notification No. 22/2024-Central tax dated 8 th October 2024.

CA ANUJ LOHIA 52
Sl Issues Clarification
No
16 In case of application in Yes.
FORM GST SPL-02, where In cases where order in FORM GST DRC-07, FORM GST DRC-08 or FORM GST APL-
the applicant has paid full or 04, as the case may be, has been issued and such taxpayer has paid required amount
partial amount of tax through through FORM GST DRC-03, such applicant is required to adjust the said amount
FORM GST DRC-03, whether towards the demand created in the Electronic Liability Register, as per the second proviso
the said applicant is to sub-rule (2) of rule 164, before filing the application in FORM GST SPL-02.
mandatorily required to file
application in FORM GST
DRC-03A for such tax amount
which he desires to get
adjusted against tax demand as
per FORM GST DRC-07/
FORM GST DRC-08/ FORM
GST APL-04?

CA ANUJ LOHIA 53
• GST Litigations
CA ANUJ LOHIA 54
Furnishing details of outward
supplies
Section Return Details Furnished Other Details
37 Form
4A, 4B, 6B, 6C - B2B, SEZ, DE  12 - HSN - wise
Furnishin GSTR 1 •
Invoices summary of outward
g details (Regular supplies
• B2C (Large) Invoices  13 - Documents
of RTP) issued during the tax
outward • Exports Invoices

period
14 - Supplies made
supplies • 8A, 8B, 8C, 8D - Nil Rated, through E-Commerce
Operators
• Exempted and Non-GST Supplies

• 9B - Credit / Debit Notes

(Registered)

• 9B - Credit / Debit Notes

(Registered)

• 11A(1), 11A(2) - Tax Liability

(Advances Received)
• 11B(1), 11B(2) - Adjustment of
Advances
55
Furnishing of Returns
Section Return Details Furnished Other Details
39 Form
Furnishin GSTR 3B • Details of Outward Supplies and
inward supplies liable to reverse
 ITC reclaimed which
was reversed under
g details (Regular charge (other than those covered
Table 4(B)(2) in
by Table 3.1.1)
of RTP) earlier tax period
 Ineligible ITC under
outward • Details of supplies notified under
section 16(4) & ITC
section 9(5) of the CGST Act,
supplies 2017 and corresponding restricted due to PoS
provision in IGST/UTGST/SGST rules
Acts

• Eligible ITC

• Values of exempt, nil-rated and

non-GST inward supplies

• Interest and Late fee for previous

tax period

56
Scrutiny of returns
Section Return Details Furnished
61 Form
Scrutiny FORM GST (1) The proper officer may scrutinize the return and related
particulars furnished by the registered person to verify the
of ASMT-10 correctness of the return and inform him of the discrepancies
noticed, if any, in such manner as may be prescribed and seek his
returns explanation thereto.
Reply in
(2) In case the explanation is found acceptable, the registered
FORM GST person shall be informed accordingly and no further action shall be
ASMT-11 taken in this regard.

(3) In case no satisfactory explanation is furnished within a period

Acceptable of thirty days of being informed by the proper officer or such further
period as may be permitted by him or where the registered person,
, then after accepting the discrepancies, fails to take the corrective
FORM GST measure in his return for the month in which the discrepancy is
accepted, the proper officer may initiate appropriate action
ASMT-12 including those under section 65 or section 66 or section 67, or
proceed to determine the tax and other dues under section
73 or section 74.
57
Notice and order for demand of amounts payable
under the Act
Section Return Details Furnished
73/Rule Form
142
Notices & FORM 47
[(1A) The 47a[proper officer may], before
Orders GST service of notice to the person chargeable
DRC01A with tax, interest and penalty, under sub-
Part A section (1) of section 73 or sub-section (1) of
section 74, as the case may
Reply in be, 47b[communicate] the details of any tax,
FORM interest and penalty as ascertained by the
GST said officer, in Part A of FORM GST DRC-01A.]
DRC01A 09-10-2019 (introduction)
Part B 15-10-2020 (Shall replaced by May)

58
Notice and order for demand of amounts payable
under the Act
Section Return Details Furnished
73/Rule Form
142
Notices & FORM 142. (1) The proper officer shall serve, along
Orders GST with the—
(a) notice issued under section 52 or section 73 or section 74 or section
DRC01 76 or section 122 or section 123 or section 124 or section 125 or
section 127 or section 129 or section 130, a summary thereof
electronically in FORM GST DRC-01;
Reply in (b) statement under sub-section (3) of section 73 or sub-section (3) of
FORM section 74, a summary thereof electronically in FORM GST DRC-02,
specifying therein the details of the amount payable.
GST
(4) The representation referred to in sub-section (9) of section 73 or sub-
DRC06 section (9) of section 74 or sub-section (3) of section 76 or the reply to
any notice issued under any section whose summary has been uploaded
electronically in FORM GST DRC-01 under sub-rule (1) shall be furnished
in FORM GST DRC-06

59
 GST
Assessmen
t Notices Point No 1 - Non RCM

Output

Point No 2 - RCM

Common Points
Point No 3 - GSTR 2A Vs GSTR 3B

Point No 4 -
Input i) Retrospective Cancellation
ii) Non GSTR 3B
iii) Different POS
iv) Credit Notes
Point 5 v) Exempt Supplies
Interest
payable CA ANUJ LOHIA 60
Tax Liability on Non RCM Outward
Supplies :-

CA ANUJ LOHIA 61
Tax Liability on Non RCM Outward
Supplies :-

CA ANUJ LOHIA 62
Tax Liability on Non RCM Outward Supplies :-

1.Highest • Use of filing GSTR 9 Annual Retrun and GSTR 9C

Figures of All Reconciliation Statement, when the highest value
the Returns amoung GSTR 1 , GSTR 3B, Ewaybill, GSTR 9 and GSTR 9C
is to be considered for raising demand.
are Justified ?
• Services have ewaybill?
2. Considering • What about the transactions exempted from ewaybill
Ewaybill data due to monetary limit?
is correct to • What about the transactions on which ewaybill is
generated by others?
what extent ?

3. Amendments not considered in the scrutiny of returns

63
Submissions & Documentary
Evidences :-

• Taxes Paid in Wrong Heads (CGST & SGST Instead of

IGST) Section - 19, Integrated Goods And Services Tax
Act, 2017
• Submit the reconciliation again to the proper officer if no such
deviation exits
• Documentary Evidences like invoice, gst returns, ewaybill,
transport documents to be attached necessarily

CA ANUJ LOHIA 64
Tax Liability on RCM Outward Supplies
:-

65
Tax Liability on RCM Outward Supplies
:-
• In case some inadvertent error occurred by the supplier
and instead of showing the transaction as non RCM they
had shown it as RCM.
1.Highest • Dual effect in above case
Figures of 3b • i) Demand will be raised in RCM category
0r 2A justified • ii) Demand will be raised in GSTR 2A ITC Vs GSTR
3B ITC since the supplier has occured an error
? • Secondly if the transporter had occurred an inadvertent
error and uploaded the invoices in favor of wrong
consignor / consignee.

Points also to be considered here :-

1. RCMs are revenue neutral hence charging interest on such liabilities are
justified ?
2. RCM paid in a particular year to be considered as RCM of that year as per
circular

66
ITC availed from different sources

67
 HIGH COURT OF CALCUTTA
Suncraft Energy (P.) Ltd.
v.
Assistant Commissioner, State Tax
• Input Tax Credit - Reversal of credit - Non-Reflection of supplier's invoice in GSTR-2A -
Period 2017-18 - Revenue reversed appellant's input tax credit alleging non-reflection of
supplier invoices in GSTR2A - Appellant argued compliance with section 16(2) and
payment to supplier via valid tax invoice - HELD : Press release dated 18-10-2018
clarifies GSTR-2A for taxpayer facilitation and does not impact input tax credit
availing - Reversal of credit from buyer is optional except under exceptional
circumstances of collusion, missing supplier, or lack of assets. - Appellant had clarified
invoice possession and payment via bank statements - Revenue failed to inquire on
supplier despite clarifications - Court has already held denial of credit due to supplier's
default as unconstitutional - Show cause notice found faults with appellant's GSTR 1 and
not with tax invoice possession or receipt - Hence, action against supplier was
essential before seeking reversal from appellant - Revenue's action deemed
to be arbitrary- Impugned order was to be set aside and authorities had to
follow CBIC guidelines[Section 16 of Central Goods and Services Tax Act,
2017/West Bengal Goods and Services Tax Act, 2017] [Paras 8, 9 and 10][In
favour of assessee]
• Circulars and Notifications : CBIC Press release dated 18-10-2018 and dated 4-5-2018

CA ANUJ LOHIA 68
 Submissions and Documentary
Evidences
• CIRCULAR NO. 183/15/2022-GST [F. NO. CBIC-
20001/2/2022 – GST]
• CIRCULAR NO. 193/05/2023-GST [F. NO. CBIC-
20001/5/2023-GST]
• Rule 36(4)
• Section 16(2)(aa)

CA ANUJ LOHIA 69
70
Declaration to be provided for
waiver of demand :-
• 4.1 In order to verify the condition of clause (c) of sub-section (2) of Section 16 of CGST Act that
tax on the said supply has been paid by the supplier, the following action may be taken by the
proper officer:
• 4.1.1 In case, where difference between the ITC claimed in FORM GSTR-3B and that available
in FORM GSTR-2A of the registered person in respect of a supplier for the said financial year
exceeds Rs. 5 lakhs, the proper officer shall ask the registered person to produce a certificate for
the concerned supplier from the Chartered Accountant (CA) or the Cost Accountant (CMA),
certifying that supplies in respect of the said invoices of supplier have actually been made by the
supplier to the said registered person and the tax on such supplies has been paid by the said
supplier in his return in FORM GSTR-3B. Certificate issued by CA or CMA shall contain UDIN. UDIN
of the certificate issued by CAs can be verified from ICAI website https://udin.icai.org/search-udin
and that issued by CMAs can be verified from ICMAI website
https://eicmai.in/udin/VerifyUDIN.aspx .
• 4.1.2 In cases, where difference between the ITC claimed in FORM GSTR-3B and that available
in FORM GSTR-2A of the registered person in respect of a supplier for the said financial year is
upto Rs. 5 lakh, the proper officer shall ask the claimant to produce a certificate from the
concerned supplier to the effect that said supplies have actually been made by him to the said
registered person and the tax on said supplies has been paid by the said supplier in his return in
FORM GSTR-3B.

CA ANUJ LOHIA 71
Declaration to be provided for
waiver of demand :-
• These instructions will apply only to the ongoing proceedings
in scrutiny/audit/ investigation, etc. for FYs. 2017-18 and
2018-19 and not to the completed proceedings. However,
these instructions will apply in those cases for FYs. 2017-18
and 2018-19 where any adjudication or appeal proceedings
are still pending.

CA ANUJ LOHIA 72
 HIGH COURT OF CALCUTTA
Makhan Lal Sarkar
v.
Assistant Commissioner of Revenue, State Tax*
• Input tax credit - Mismatch of Form GSTR-3B and Form GSTR-2A - Benefit of input
tax credit (ITC) was rejected on ground that there was a mismatch of ITC claimed in
Form GSTR-3B and that reflected in Form GSTR-2A - Assessee's case was that these
were inadvertent error which could have been easily rectified - HELD : Any
mismatch ought to have been attempted to be ascertained from records
of respondent authorities and their online portal - Moreover, respondent
authorities had not even adverted to impugned Circular No. 183/15/2022-
GST, dated 27-12-2022 which inter alia clarify approach to be followed by
department in cases where supplier had wrongly reported said supply as B2C
instead of B2B in Form GSTR-1 due to which relevant supply was not get reflected -
Similarly, declaration of wrong GSTIN of recipient in Form GSTR-1 ought to have
been dealt with in terms of said circular - Therefore, impugned order was to be set
aside - Fresh adjudication was required [Section 16, read with section 73, of Central
Goods and Services Tax Act, 2017/West Bengal Goods and Services Tax Act, 2017]
[Paras 8, 9, 10 and 11] [In favour of assessee]
• Circulars and Notifications : Circular No. 183/15/2022-GST, dated 27-12-2022

CA ANUJ LOHIA 73
 HIGH COURT OF CALCUTTA
Lokenath Construction (P.) Ltd.
v.
Tax/Revenue, Government of West Bengal*

• HELD: If there was any clarification required for assessee, it would have
been well open to revenue to call upon the assessee to do so and without
such opportunity revenue unilaterally proceeded with matter - Moreover,
revenue had ignored tax invoices produced by assessee as well as
certificates issue by Chartered Accountants which was erroneous
and wholly without jurisdiction - If revenue had admitted fact that
assessee had made payment of tax to supplier against transaction
and if it was a case of revenue that such tax had not been
remitted to State exchequer, elementary principle to be adopted
was to cause enquiry with supplier and without doing so to
penalizing assessee would be arbitrary, illegal and without
jurisdiction - Therefore said order passed confirming demand was to be
set aside [Section 73 read with section 16 of Central Goods and Services
Tax Act, 2017/West Bengal Goods and Services Tax Act, 2017][Paras 8 and
9][In favour of assessee]

CA ANUJ LOHIA 74
• Rule 36(4) of Central Goods and Services Tax Rules, 2017
(hereinafter referred to as "CGST Rules") only with effect from
9th October 2019

From To
01-07-2017 08-10-2019
Circular 183

09-10-2019 31-12-2019 Rule 36 (4) – Allowed 20% deviation

01-01-2020 31-12-2020 Rule 36 (4) – Allowed 10% deviation

01-01-2021 31-12-2021 Rule 36 (4) – Allowed 5% deviation

01-01- Section 16 (2)(aa)

2022
75
ITC found reversible, if availed

76
i) ITC uploaded by suppliers whose registration has been cancelled
retrospectively
HIGH COURT OF CALCUTTA
Gargo Traders
v.
Joint Commissioner, Commercial Taxes (State Tax)*

Input tax credit - Denial of - ITC Fraud - Fake and non-existing supplier - Input tax credit was denied on ground that
supplier were fake and non-existing; that bank accounts were opened by supplier on basis of fake document and,
therefore, ITC claim of petitioner was not supported by any relevant document; that there was failure by petitioner to
verify genuineness and identity of supplier whether they were registered taxable person (RTP) before entering into any
transaction with supplier and ; that registration of supplier in question was already cancelled with retrospective effect
covering transaction period of petitioner - HELD : At time of transaction, supplier's name as registered taxable
person was already available on Government record and petitioner paid amount on purchased articles as
well as tax on same through bank and not in cash - It was not a case of Department that there was a
collusion between petitioner and supplier with regard to transaction - Without proper verification, it
cannot be said that there was any failure on petitioner's part in compliance of any obligation required
under statute before entering into transactions in question - Claim was rejected taking into
consideration cancellation of registration of supplier with retrospective effect without considering
documents relied on by petitioner-Concerned Authority should consider petitioner's grievance afresh by
taking into consideration of documents which petitioner intended to rely in support of his claim and pass
reasoned and speaking order [Section 16 of Central Goods and Services Tax Act, 2017] [Paras 12 to 19] [In
favour of assessee]
CA ANUJ LOHIA 77
ii) ITC uploaded by suppliers who
have not filed relevant GSTR-3B
HIGH COURT OF CALCUTTA
Laxmi Traders
v.
Assistant Commissioner of State Tax*
Input tax credit - Denial of - Non-payment of tax by supplier - Period 2017-18 - It was alleged that although IGST was not
paid and NIL return had been filed by seller, assessee had availed input tax credit contrary to law - Assessee challenged
said order on ground that invoices with regard to payment to seller would indicate that for every transaction with
particular seller, IGST had been paid to seller - According to assessees, non-compliance of law by seller could not saddle
them with burden of refund of ITC which assessees had rightfully availed - HELD : In instant case, it appeared that there
were invoices which indicated that IGST was paid to seller - However, there was nothing on record to show that seller
had either wilfully suppressed such payment made by assessees or that assessees had actually paid amount to seller as
raised in invoices - However, documents relied upon by assessees were not produced before authorities - Prima facie, it
appeared that relevant Press Release had been violated by respondent-authority - Before department proceeded against
buyer, it should have first proceeded against seller and only if exceptional circumstances can be made out in a particular
case, buyer can be proceeded against - However, factual aspects which had been urged could not be adjudicated by
High Court as claimed by authorities that there was an admission on part of buyer to pay up money - Assessee was to be
given a chance to approach authority with all documents and contentions in respect of demand raised - Matter was to be
adjudicated afresh [Section 16 of Central Goods and Services Tax Act, 2017/West Bengal Goods and Services Tax Act,
2017] [Paras 5, 6, 7 and 8] [In favour of assessee/Matter remanded]
Circulars and Notifications: CBIC Press Release No. 156/2018, dated 4-5-2018.

CA ANUJ LOHIA 78
iii) ITC in GSTR-2A where P-o-S is
not shown as W.B.
• In such cases documentary evidences to be produced like
invoices, ewaybills and transporter challan

iv) ITC found reversible in respect

of credit notes received
• In such cases documentary evidences to be produced like ITC
Register matching with GSTR 3B showing the adjustment of credit
notes with debit notes and invoices.

CA ANUJ LOHIA 79
v) ITC found reversible in
proportion to exempt supply, if any
• Total exempt supply considered for proportionate reversal ignoring
the explanation to Rule 43.
• Total Input Tax Credit considered as Common Input Tax Credit
available for proportionate reversals
• No table available till date in GSTR 3B to segregate taxable, exempt,
common ITC and hence information regarding the same cannot be
provided
• Documentary evidences –
a) ITC Register with segregation
b) Profit & Loss Statement showing the exempt supplies not to be
included in the calculation of reversals.
CA ANUJ LOHIA 80
Interest payable

Delayed filing of Invoices - Amendments to be considered

CA ANUJ LOHIA 81
Proper Repl
Officer
y Proper
ASMT- ASMT-
Officer
10 11

DRC01 DRC01 ASMT-

A Part A A Part B
12
DRC01 DRC06

DRC07 APL-1
DRC07
CA ANUJ LOHIA 82
 Section 16(4)

• Time limit to take ITC

Earlier - Due date of September Return
Now- 30th November

CA ANUJ LOHIA 83
 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
WP(C) NO. 31559 OF 2019

PETITIONER:
M/S M.TRADE LINKS
FA TOWER, K.K.ROAD,KADAVANTHRA, ERNAKULAM,
REPRESENTED BY
NIYAS AHAMMED, MANAGING PARTNER.
BY ADVS.
SMT.MEERA V.MENON

RESPONDENTS:

1 UNION OF INDIA
REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF
FINANCE
CA ANUJ LOHIA 84
Held that :-
• The time limit for furnishing the return for the month of
September is to be treated as 30th November in each
financial year with effect from 01.07.2017, in respect of the
petitioners who had filed their returns for the month of
September on or before 30th November, and their claim for
ITC should be processed, if they are otherwise eligible for ITC.

CA ANUJ LOHIA 85
Pending cases in Apex Court :-
SHANTI MOTORS VS UNION OF INDIA
SHIVA ESCORTS VS UNION OF INDIA
MAA KALI WORKS VS UNION OF INDIA
RANJIT KUMAR VS UNION OF INDIA
GOBINDA CONSTRUCTION VS UNION OF INDIA
ADITYA ANUSHKA ENTERPRISES VS UNION OF INDIA
M/S OM BHANDAR VS UNION OF INDIA

CA ANUJ LOHIA 86
Thank you

87