1. M/s XYZ was served a show cause notice dated XX 2023, demanding Late fees on late filing of GSTR-9C.

2. In response to the allegation as set out in the SCN dated XX, the Noticee submits that the notice demanding late fees on late filing of GSTR-9C, while GSTR-9 is filed within the due date, is unlawful and unjust.

NOTICEE’S SUBMISSIONS

NOTICE DEMANDING LATE FEES ON LATE FILING OF GSTR-9C, WHILE GSTR-9 IS FILED WITHIN THE DUE DATE, IS UNLAWFUL AND UNJUST

1. At the outset, it is submitted that as per Section 47(2) of the CGST Act, 2017 (“the CGST Act”), a registered person is liable to pay the late fee only when he fails to furnish the return under Form GSTR-9 under Section 44 of the CGST Act. Relevant extract of section 47(2) is reproduced herein below –

“(2) Any registered person who fails to furnish the return required under section 44 by the due date shall be liable to pay a late fee of one hundred rupees for every day during which such failure continues subject to a maximum of an amount calculated at a quarter per cent. of his turnover in the State or Union territory.”

2. It is pertinent to note that Form GSTR-9C is only a reconciliation statement to be filed along with annual return. Form GSTR-9C is not a return as contemplated under Section 44 of the CGST Act.

3. That since, Form GSTR-9C does not fall within the purview of Section 44 of the CGST Act, Section 47(2) will also not apply on Form GSTR-9C. Therefore, it can be said that there is no legal provision to levy interest on late filing of Form GSTR-9C.

4. It is also pertinent to note that the GST Portal does not support payment of late fee for late filing of Form GSTR-9C. The portal is only enabled to charge late fee for Form GSTR-9 only.

5. Without prejudice to the submissions given above, the government issued a notification in exercise of the powers conferred under Section 128 of the CGST Act, on the recommendation of the GST Council vide Notification No. 7/2023-CT dated 31 March 2023, providing an Amnesty Scheme with respect to non-filers of Form GSTR-9. Relevant extract of the above-mentioned notification is reproduced herein below –

S.O…..(E).- In exercise of the powers conferred by section 128 of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereinafter referred to as the said Act), the Central Government, on the recommendation of the Council, hereby waives the amount of late fee referred to in section 47 of the said Act in respect of the return to be furnished under section 44 of the said Act for the financial year 2022-23 onwards, which is in excess of amount as specified in Column (3) of the Table below, for the classes of registered persons mentioned in the corresponding entry in Column (2) of the Table below, who fails to furnish the return by the due date, namely:-

Table

Serial Number	Class of registered persons	Amount
(1)	(2)	(3)
1.	Registered persons having an aggregate turnover of up to five crore rupees in the relevant financial year	Twenty- five rupees per day, subject to a maximum of an amount calculated at 0.02 percent. of turnover in the State or Union territory.
2.	Registered persons having an aggregate turnover of more than five crore rupees and up to twenty crore rupees in the relevant financial year	Fifty rupees per day, subject to maximum of an amount calculated at 0.02 percent. of turnover in the State or Union Territory.

Provided that for the registered person who fail to furnish the return under section 44 of the said Act by the due date for any financial years 2017-18, 2018-19, 2019-20, 2020-21 or 2021-22, but furnish the said return between the period from the 1st day of April, 2023 to the 30th day of June, 2023, the total amount of late fee under section 47 of the said Act payable in respect of the said return, shall stand waived which is in excess of ten thousand rupees.

6. As per the said Amnesty Scheme, a late fee with respect to late filing of Form GSTR-9, in excess of Rs. 10,000/- to be paid under Section 47 of the CGST Act, with respect to Annual Returns for the FY2017-18 to FY 2019-20 was waived.

7. The above-mentioned Amnesty Scheme was initially provided upto 30 June 2023, however, subsequently, another notification was issued vide Notification No. 25/2023-CT dated 17 July 2023 whereby the Amnesty Scheme was extended until 31 August 2023.

8. Reliance in this regard, is placed upon the judgement of the Hon’ble Kerala High Court in the matter of Anishia Chandrakanth vs The Superintendent WP(C) No. 30644 of 2023 dated 09 April 2024 cited in 2024 Taxo.online 768, where it was held that GST Notices for non-payment of late fee for belated Form GSTR-9C filed by the taxpayers before 01 April 2023, the date on which one time Amnesty Scheme commences are unjust and unsustainable.

Conclusion

9. Therefore, the Noticee humbly submits that late fee for late filing of GSTR-9C cannot be sought from the Noticee.

10. It is kindly submitted before the office of your goodself to drop the proceedings upon the Noticee.