GST: Is recovery proceeding justified for differences in outward supply in GSTR-1 vs. GSTR 3B

From January 2022 the difference between outward supply shown in GSTR-1 vs. GSTR-3B of the relevant period would be considered as self-assessment tax and the department may initiate recovery proceedings under Section 79 of the CGST Act.
Finance Minister Nirmala Sitharaman, in Union Budget 2021-22, proposed changes vide the Finance Bill, 2021, that amends the Central Goods and Services Tax Act, 2017 with respect to recovery of self- assessed tax, which is now notified vide Notification No. 39/2021–Central Tax dated December 21, 2021, by insertion of Explanation to Section 75(12) of the CGST Act with effect from January 01, 2022.

The Explanation reads as under
“Section 75. General provisions relating to determination of tax (12) Notwithstanding anything contained in section 73 or section 74, where any amount of self-assessed tax in accordance with a return furnished under section 39 remains unpaid, either wholly or partly, or any amount of interest payable on such tax remains unpaid, the same shall be recovered under the provisions of section 79.
Explanation––For the purposes of this sub-section, the expression “self-assessed tax” shall include the tax payable in respect of details of outward supplies furnished under section 37, but not included in the return furnished under section 39.”

The above amendment has been made to clarify that “self-assessed tax” shall include the tax payable in respect of outward supplies (OS) which have been furnished in Form GSTR-1 under Section 37 of the CGST Act, but not included in the return furnished in Form GSTR-3B under Section 39 of the CGST Act.

For example, if a taxpayer has wrongly furnished its outward supply in GSTR-1 as Rs 10,00,000 whereas it should have been only Rs 1,00,000 and has paid GST in GSTR-3B on Rs 1,00,000. Consequently, there would be a difference between outward supply shown in GSTR-1 vs. GSTR-3B of the relevant period.

Further, it is to be noted that Section 75(12) of the CGST Act starts with non-obstante clause that “Notwithstanding anything contained in section 73 or section 74….”

Therefore, from January 01, 2022, the difference between outward supply shown in GSTR-1 vs. GSTR-3B of the relevant period would be considered as self-assessment tax and the GST department may initiate recovery proceedings on such differential amount under Section 79 of the CGST Act (i.e. through various modes like detaining/selling goods, garnishee proceedings, selling of movable or immovable property belonging to the defaulting person,etc.).

Though, this amendment was made as deterrent to those who file GSTR-1 and pass on the GST credit to buyer but do not pay taxes correctly by filing GSTR-3B but, the said amendment gives wide power of the recovery proceedings, in respect of ‘self-assessed tax’ on outward supplies which have been declared in Form GSTR-1 but not included in GSTR-3B, which raises concern in the mind of trade members whether such recovery is justified even for a clerical error straightaway under Section 79 of the CGST Act without issuance of show cause notice.

In this regard, it is advisable for the Government to provide some defined time period, say 6 months, for amending the GSTR-1 for correction of any unintentional mistakes so as to provide ease of doing business.