2017-18至2019-20财年《CGST法案》第73条下需求特赦计划 | 申请提交与税款缴纳方式

鉴于在商品及服务税（GST）实施初期，纳税人在申报和缴纳税款时出现了一些非主观过失，第53届GST理事会会议宣布了一项特赦计划，即针对2017-18至2019-20财年期间根据《中央商品及服务税法》（CGST Act）第73条发出的通知、声明或命令，免除其利息和罚款。

Provisions related to the amnesty scheme are inserted through Section 128A of the CGST Act, 2017. The CBIC received various doubts from the industry about the implementation of Section 128A of the CGST Act. In order to clarify the issue and to ensure uniformity in the implementation of the provisions, clarification is issued through Circular No. Circular No. 238/32/2024-GST dated 15th October, 2024.

本文将探讨根据第128A条提交申请的方式以及缴纳税款的流程。

1. Section 128A of CGST Act, 2014

• 根据第53届GST理事会会议的建议，《中央商品及服务税法》新增了第128A条，并于2024年11月1日起生效。
• 该条款规定，对于2017-18、2018-19和2019-20财年期间根据《中央商品及服务税法》第73条产生的税款需求，可免除相关利息和罚款。
• 第128A条的规定将于2024年11月1日起适用。
• 此外，根据2024年10月8日发布的第20/2024号中央税收通知，CGST规则中新增了第164条。第164条规定了根据《中央商品及服务税法》第128A条终止程序的流程和条件。
• 纳税人若要申请第128A条规定的优惠，必须在2025年3月31日之前全额缴纳通知、声明或命令中所要求的税款。

2. Cases where the application can be filed under Section 128A

• 第128A条的规定适用于针对2017-18、2018-19和2019-20财年根据第73条发出通知或声明的以下情况：
  • 已根据第73(1)条或第73(3)条发出通知或声明，但尚未根据第73(9)条发出命令的情况；
  • 已根据第73(9)条发出命令，但上诉机构或复议机构尚未作出裁决的情况；
  • 上诉机构或复议机构已针对第73条项下的通知或声明作出裁决，但上诉法庭尚未作出裁决的情况。

• Further, application under section 128A(1) can also apply in the cases where notice or statement is initially issued under section 74 but the proper officer is required to pass an order under section 73 as per directions of Appellate Authority or Appellate Tribunal or a court.

3. 根据第128A条提交申请的流程

3.1 Form in which application is required to be filed:

• 纳税人应在不同情况下通过GST门户网站使用以下表格申请适用第128A条：

• If more than one notice or statement or order is issued under section 73 of the CGST Act from July 2017 to March 2020 then a separate application is required to be filed for each notice/ statement or order.

3.2 根据第128A条提交申请的时间

• The application in FORM GST SPL-01 or FORM GST SPL-02 shall be filed within 3 months from 31.03.2025.
• In case where notice is issued under section 74 but an order is required to be issued under section 73, the application shall be filed in FORM GST SPL-02 within 6 months from the date of communication of the order issued under section 73. 

3.3 撤回上诉或令状申请

• Where an appeal has been filed by the taxpayer, against an order referred to in Section 128A(1)(b) or (c), or where a writ petition has been filed by the taxpayer against a notice/ statement/ order referred to Section 128A(1)(a) or (b) or (c) then the taxpayer is required to withdraw the same before filing an application under Section 128A(1).
• The order of withdrawal of such appeal/ writ petition is required to file along with the application filed in FORM GST SPL-01 or FORM GST SPL-02.
• Where the taxpayer has filed the application for withdrawal of appeal or writ petition before Appellate Authority or Appellate Tribunal or a court 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 then the taxpayer is required to upload the copy of such application or the document filed for withdrawal alongwith Form GST SPL-01 or GST SPL-02.
• The taxpayer shall upload the final order of withdrawal on GST portal within 1 month from the of the issuance of the such withdrawal order.

4. 根据第128A条缴纳税款

4.1 Manner of Payment of Tax:

纳税人需按照以下方式缴纳根据第128A条规定的税款：

a. Section 128A(1)(a), i.e., Notice or statement is issued under section 73 but final order is not issued: Tax demanded in notice shall be paid through GST DRC-03.

b. Section 128A(1)(b) or (c), i.e., Order is issued under section 73 but matter is pending with Appellate Authority or Revisional Authority or Appellate Tribunal::

• payment towards tax demanded shall be made by making the payment against the debit entry created in the Part II of the Electronic Liability Register (ELR) by the demand order in the manner provided in Circular No. 224/18/2024 -GST dated 11th July 2024.
• However, if payment is already made through GST DRC-03 then the taxpayer shall follow the procedure prescribed in rule 142(2B). The taxpayer shall file an application in FORM GST DRC-03A 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. 
• Date of payment shall be considered as the date on which the amount has been paid through FORM GST DRC-03 and not the date on which the said amount has been adjusted using FORM GST DRC-03A.

4.2 Other points to be considered:

• Such payment shall be made on or before 31st March, 2025.
• In case notice is issued under section 74 and order is issued under section 73, tax payment shall be made within 6 months of the communication of the order issued under section 73
• The applicant can file the application for waiver of interest or penalty only after payment of full amount of tax demanded in the notice/ statement/ order including demand pertaining to erroneous refund, if any.
• If issued notice or order included a period other than July 2017- March 2020 (i.e., in addition to the period of July, 2017 - March, 2020) then the taxpayer is required to pay demand pertaining to such additional period as well before filing application.

4.3 Tax no more payable due to Section 16(5) or (6) of CGST Act

• In case the amount of tax payable as per the notice/ statement/ order includes the amount that was demanded due to contravention of provisions of Section 16(4). However, such amount is not more payable due to the retrospective insertion of Section 16(5) or (6) then the full amount of tax payable as per the notice/ statement/ order shall be calculated after deducting the amount which is not payable as per Section 16(5) or (6) of CGST Act.
• While computing the amount deductible on account of Section 16(5) or (6), the taxpayer has to ensure that the amount is deducted only where ITC has been denied solely on account of Section 16(4) of the CGST Act and not on any other grounds. 
• The tax officer scrutinizing such applications is also required to verify such computation.